[HISTORY: Adopted by the Borough Council
of the Borough of Eatontown 12-4-1996 by Ord. No. 26-96; amended in its entirety 2-27-2019 by Ord. No. 02-2019. Subsequent amendments noted where applicable.]
The Borough Council of the Borough of Eatontown does hereby
determine that smoking of tobacco constitutes a fire, health and safety
hazard and a nuisance in the municipal buildings and in the public
parks, as well as all other indoor and outdoor public places, and
requires prohibition thereof.
The following words and terms, when used in this chapter, shall
have the following meanings unless the context clearly indicates otherwise:
Any business establishment or a portion of a nonprofit entity
which is devoted to the selling and serving of alcoholic beverages
for consumption by the public, guests, patrons or members on the premises
in which the serving of food, if served at all, is only incidental
to the sale or consumption of such beverages.
Any bar, or area within a bar designated specifically for
the smoking of tobacco products, purchased on the premises or elsewhere;
except that a cigar bar that is in an area within a bar shall be an
area enclosed by solid walls or windows, a ceiling and a solid door
and equipped with a ventilation system which is separately exhausted
from the nonsmoking areas of the bar, so that the air from the smoking
area is not recirculated to the nonsmoking area and smoke is not back
streamed into the nonsmoking area.
Any establishment, or area within an establishment, designated
specifically for the smoking of tobacco products purchased on the
premises or elsewhere; except that a cigar lounge that is in an area
within an establishment shall be an area enclosed by solid walls or
windows, a ceiling and a solid door and equipped with a ventilation
system which is separately exhausted from the nonsmoking areas of
the establishment, so that the air from the smoking area is not recirculated
to the nonsmoking area and smoke is not back streamed into the nonsmoking
area.
An electronic device that can be used to deliver nicotine
or other substances to the person inhaling from the device, including,
but not limited to an electronic cigarette, cigar, cigarillo or pipe.
A structurally enclosed place of business, commerce or other
service related activity, whether publicly or privately owned or operated
on a for-profit or nonprofit basis, which is generally accessible
to the public, including but not limited to: a commercial or other
office building; office or building owned, leased or rented by the
state or by a county or municipal government; public and nonpublic
elementary or secondary school buildings; Board of Education building;
theatres or concert halls; public library; museum or art gallery;
bar; restaurant or other establishment where the public business is
the sale of food for consumption on the premises, including the bar
area of an establishment; garage or public facility; any public conveyance
operated on land or water, or in the air; passenger waiting rooms
and platforms areas in any stations or terminals thereof; healthcare
facilities licensed pursuant to P.L. 1971, c. 136 (N.J.S.A. 26:2H-1
et seq.); patient waiting room of the office of healthcare provider
licensed pursuant to Title 45 of the Revised Statutes; childcare center
licensed facilities pursuant to P.L. 1983, c. 492 (N.J.S.A. 30:5B-1
et seq.); racetrack facility; facility used for the holding of sports
events; ambulatory recreational facilities, shopping malls or retail
stores; hotel, motel or other lodging establishments; apartment building
lobbies or other public area in an otherwise private building; passenger
elevators in a building other than a single-family dwelling.
The enclosed portion of (a) Borough Hall located at 47 Broad
Street or any relocation or annex or addition to the aforesaid Borough
Hall serving as offices and services for the Borough of Eatontown;
(b) Community Center located at 68 Broad Street and any annex or additional
building serving for community services for the Borough of Eatontown;
(c) Community Center Annex located at 68 Broad Street; (d) Library
located at 33 Broad Street; (e) Museum located at 75 Broad Street;
(f) Public Works Garage located off Pine Brook Road and Lewis Street
and any other future relocation of the Department of Public Works.
The owner or operator of a commercial or other office building
or other indoor public place from whom a workplace or space within
the building or indoor public place is leased, or the person having
supervisory authority over a public park or beach or that person's
designee, as applicable.
A state park or forest, a county or municipal park or a state,
county or municipal beach, but does not include any parking lot that
is adjacent to but outside of the public park or beach.
The burning of, inhaling from, exhaling the smoke from, or
the possession of a lighted cigar, cigarette, pipe or any other matter
or substance which contains tobacco or any other matter than can be
smoked, or the inhaling or exhaling of smoke or vapor from an electronic
smoking device.
An establishment in which at least 51% of retail business
is the sale of tobacco products and accessories in which the sale
of other products is merely incidental.
A structurally enclosed location or portion thereof at which
a person performs any type of service or labor.
Smoking is prohibited at all times in municipal buildings and
in indoor public places or workplaces and at public parks or beaches
(if any); except as otherwise provided in this chapter. Smoking is
also prohibited in any area of any building of, or on the grounds
of, any public or nonpublic elementary or secondary school, regardless
of whether the area is an indoor public place or is outdoors.
Areas allowed for smoking outside of public buildings, public
parks or beaches (if any) shall be in accordance with N.J.S.A. 26:3D-56
and any other applicable state statutes.
The aforesaid provision hereby amended to be consistent with § 67-3 of this chapter in terms of the scope of the prohibition, while continuing the prior provision prohibiting smoking in the municipal building.
The prohibition with regard to smoking shall not apply to the
following:
A.
Any cigar bar or cigar lounge that in the calendar year ending December
31, 2004, generated 15% or more of its total annual gross income from
the on-site sale of tobacco products and the rental of on-site humidors,
but not including any sales from vending machines, and is registered
with the local Board of Health at the Borough of Eatontown in which
the bar or lounge is located. Registration shall remain in effect
for one year and shall be renewable only if: (1) in the preceding
calendar year the cigar bar or lounge generated 15% or more of its
total annual gross income from the on-site sale of tobacco products
and the rental of on-site humidors, and (2) the cigar bar or cigar
lounge has not expanded its size or changed its location since December
21, 2004.
B.
Any tobacco retail establishment, or any area the tobacco retail
establishment provides for the purposes of smoking.
C.
Any tobacco business when the testing of a cigar or pipe tobacco
by heating, burning or smoking is a necessary and integral part of
the process of making, manufacturing, importing or distributing cigars
or pipe tobacco.
D.
Private homes, private residences and private automobiles.
E.
The area within the perimeter of:
(1)
Any casino as defined in Section 6 of P.L. 1977, c.110 (N.J.S.A.
5:12-6) approved by the Casino Control Commission that contains at
least 150 stand-alone slot machines, 10 table games, or some combination
thereof approved by the Commission, which machines and games are available
to the public for wagering; and
(2)
Any casino simulcasting facility approved by the Casino Control Commission
pursuant to Section 4 of P.L. 1992, seating for at least 50 simulcast
patrons or a simulcast operation and at least 10 table games, which
simulcast facilities and games are available to the public for wagering.
F.
Research laboratories and other facilities that have been approved
by the Department of Health to permit smoking for the purpose of medical
research related to the health effects of smoking, in an indoor facility
that is separately ventilated for the purpose of medical or scientific
research that is conducted under physician supervision and has been
approved by an Investigational Review Board (IRB), if the facility
is used solely and exclusively for clinical research activities.
G.
A golf course, except for variations of traditional golf courses
found in municipal, county or state parks within the Borough.
H.
An area of a municipal or County beach (if any) not to exceed 15%
of the total area of the beach, which is designated by the municipality
or County by ordinance or resolution as a smoking area.
I.
Any cigar bar or lounge previously registered with the local Board of Health pursuant to Subsection A of this section that has, in accordance with the requirements of this subsection, renewed that registration following a period of lapse. A cigar bar or cigar lounge registration which has lapsed may be renewed under this subsection if: (1) no more than 10 years have elapsed since the date the registration lapsed; (2) in the calendar year immediately preceding the lapse, the cigar bar or lounge generated 15% or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors; and (3) the cigar bar or lounge has not expanded its size or changed its location since December 31, 2004. A registration renewed pursuant to this subsection shall remain in effect for one year, and shall be renewable thereafter only if it meets the requirements for renewal as set forth in this subsection or Subsection A of this section.
A.
The person having control of a hotel, motel or other lodging establishment
may permit smoking in up to 20% of its guest rooms.
B.
Nothing in this section shall be construed to require a hotel, motel
or other lodging establishment to provide a nonsmoking room to a guest
if all the designated nonsmoking rooms are occupied.
The person having control of an indoor public place or workplace,
or a public park or beach (if any) shall place in every public entrance
to the indoor public place or workplace, or the public park or beach,
a sign, which shall be located so as to be clearly visible to the
public and shall contain the letters or a symbol which contrasts in
color with the sign indicating that smoking is prohibited therein,
except in such designated areas as provided pursuant to this chapter.
The sign shall also indicate that violators are subject to a fine.
The person having control of the indoor public place or workplace
or the public park or beach shall post a sign stating "Smoking Permitted"
in letters at least one inch in height or marked by the international
symbol for "Smoking Permitted" in those areas where smoking is permitted.
The provisions of this section shall not be construed to prevent a
lessee of the workplace or space within the building or indoor public
place from enforcing the smoking restrictions imposed by the owner
or operator of a commercial or other office building or other indoor
public place.
A.
A person having control of an indoor public place or workplace or
a public park or beach (if any) shall order any person smoking in
violation of this chapter to comply with the provisions of the Ordinance.
A person, after being ordered, who smokes in violation of this chapter
is subject to a fine of not less than $250 for the first offense,
$500 for the second offense and $1,000 for each subsequent offense.
A penalty shall be recovered in accordance with the provisions set
forth below.
Any person violating any provision of this chapter shall, upon
conviction thereof, be subject to a fine of not less than $250 for
the first offense $500 for the second offense and $1,000 for each
subsequent offense. The Department of Health or the local Board of
Health or the board, body or officers exercising the functions of
the local Board of Health, upon written complaint or having reason
to suspect violation of this chapter shall, by written notification,
advise the person having control of the place accordingly, and order
appropriate action to be taken. A person receiving that notice who
fails or refuses to comply with the order is subject to a fine of
not less than $250 for the first offense, $500 for the second offense
and $1,000 for each subsequent offense. In addition to the penalty
provided therein, the Court may order immediate compliance with the
provisions of this chapter.
A.
The penalty recovered under the provisions of this chapter shall
be recovered by and in the name of the Commissioner of Health or by
and in the name of the local Board of Health. If the Plaintiff is
the Commissioner of Health, the penalty recovered shall be paid by
the Commissioner into the treasury of the State of New Jersey. When
the Plaintiff is the local Board of Health or designee, the penalty
recovered shall be paid by the local Board into the treasury of the
municipality where the violation occurred.
B.
The Superior Court of New Jersey or Municipal Court of the Borough
of Eatontown shall have jurisdiction over proceedings to enforce and
collect any penalty imposed due to the violation of this chapter,
if the violation has occurred within the territorial jurisdiction
of the Court, except that the Superior Court of New Jersey shall have
exclusive jurisdiction over violations that occur in an indoor public
place or public park or beach (if any) that may be issued against
a state or local government entity pursuant to N.J.S.A. 26:3D-56.
Proceedings shall be summary and in accordance with the "Penalty Enforcement
Law of 1999" (N.J.S.A. 2A:58-10 et seq.) and the process shall be
in the nature of a summons and shall issue only at the suit of the
Commissioner of Health or the local Board of Health or its designee,
as the case may be, as plaintiff.
C.
The penalties provided by this chapter shall be the only civil remedy
for the violation of this chapter, and there shall be no private right
of action against a party for failure to comply with the provisions
of this chapter, by limitation set forth more fully in state statute.
