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Sparroween, LLC v. Township of West Caldwell

Superior Court of New Jersey, Appellate Division

November 14, 2017

SPARROWEEN, LLC d/b/a CIGAR EMPORIUM and RICHARD YANUZZI, Plaintiffs-Appellants,
v.
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.

          Argued telephonically October 3, 2017

         On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1966-16.

          Steven J. Martino argued the cause for appellants (Iacullo Martino, LLC, attorneys; Mr. Martino, on the brief).

          Andrew 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).

          Before Judges Reisner, [1] Gilson, and Mayer.

          OPINION

          GILSON, J.A.D.

         Plaintiffs 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 We affirm because the ordinance is valid and is not superseded by the Smoke-Free Act.

         I.

         Plaintiffs 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.[2] 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.

         In 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.

         In 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]."

         Thereafter, 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.

         Following 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 Memorandum.

         Following 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 under ...


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