SPARROWEEN, LLC d/b/a CIGAR EMPORIUM and RICHARD YANUZZI, Plaintiffs-Appellants,
TOWNSHIP OF WEST CALDWELL, TOWNSHIP OF WEST CALDWELL BOARD OF HEALTH and WILLIAM WALLACE, INDIVIDUALLY AND IN HIS CAPACITY AS HEALTH OFFICER OF THE TOWNSHIP OF WEST CALDWELL, Defendants-Respondents.
telephonically October 3, 2017
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. L-1966-16.
J. Martino argued the cause for appellants (Iacullo Martino,
LLC, attorneys; Mr. Martino, on the brief).
Gimigliano argued the cause for respondents (O'Toole,
Scrivo, Fernandez, Weiner, Van Lieu, LLC, attorneys; Juan C.
Fernandez, of counsel; Anthony D. Capasso and Michael Garcia,
on the brief).
Judges Reisner,  Gilson, and Mayer.
appeal from an April 18, 2016 order that dismissed their
prerogative writs action and denied their request to
invalidate a municipal smoking ordinance. Plaintiffs
primarily argue that the New Jersey Smoke-Free Air Act (the
Smoke-Free Act), N.J.S.A. 26:3D-55 to -64, supersedes the
municipal ordinance. We affirm because the ordinance is valid
and is not superseded by the Smoke-Free Act.
are Sparroween, LLC, d/b/a Cigar Emporium (Sparroween) and
Richard Yanuzzi, the sole owner of Sparroween (collectively,
plaintiffs). Since June 2015, Sparroween has operated a
tobacco retail store in West Caldwell. One-third of the
store consists of sale space for purchasing cigars, pipe
tobacco, and related accessories. The remainder of the store
consists of seating areas for customers.
early 2014, Sparroween submitted an application to the West
Caldwell Planning Board (the Planning Board) for site plan
and development approval to open a tobacco retail
establishment. The application stated that Sparroween's
intent was to sell cigars, pipe tobacco, and various
accessories, and that the premises would have seating areas
where customers could smoke tobacco products purchased from
the store. The Planning Board forwarded plaintiffs'
application to other Township officials, including the Board
of Health and the Health Officer.
response, the Health Officer submitted a memorandum to the
Planning Board and Sparroween, commenting on the application
and identifying certain "requirements" for the
application (the Memorandum). The Memorandum noted that for
Sparroween to receive a tobacco retail establishment waiver
under the Smoke-Free Act, plaintiffs would need to submit a
notice of claim for exemption. In the Memorandum, the Health
Officer also suggested certain conditions, including that:
(1) the establishment be a "cash and carry"
business, "with the general purpose of purchasing
product[s] for off-premise[s] consumption[;]" and (2)
"pre-purchase sampling shall be limited to no more than
3 minutes prior to making a multi-unit purchase from the
[tobacco retail establishment]."
the Planning Board held a hearing on Sparroween's
application. At the hearing, the chairman of the Planning
Board informed Sparroween that if its application was
approved, the approval would only cover its use as a retail
store and a lounge for customers. Thus, the approval would
not cover indoor smoking. In response, representatives of
Sparroween acknowledged that they would be subject to
regulatory requirements to get approval for indoor smoking.
the hearing, the Planning Board approved Sparroween's
application, and on April 21, 2014, it issued a resolution
approving the application for "the retail sale of
[t]obacco products and accessories." The resolution was
conditioned on Sparroween complying "with all [f]ederal,
state and local laws, rules and regulations[.]" The
resolution also noted that Sparroween had read the
recommendations of the Health Officer set forth in the
receipt of its development and site plan approval, Sparroween
leased and renovated the premises. In June 2015, Sparroween
opened Cigar Emporium. In August 2015, the Health Officer
issued a notice of violation to Sparroween for failing to
file a claim for exemption of a tobacco retail establishment