[Ord. BH12/2/15]
This chapter may be cited as the "Smoke-Free Ordinance of the
Township of West Caldwell".
[Ord. BH12/2/15]
As used in this chapter the following terms shall have the meanings
indicated:
Shall mean a business establishment or any 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
and in which the serving of food, if served at all, is only incidental
to sale or the consumption of those beverages, including but not limited
to, taverns, nightclubs, cocktail lounges, and cabarets.
Shall mean the Board of Health of the Township of West Caldwell.
Shall mean a sole proprietorship, partnership, joint venture,
corporation, or other business entity, either for-profit or not-for-profit,
includes retail establishments where goods or services are sold; professional
corporations and other entities where legal, medical, dental, wholesale
engineering, architectural, or other professional services are delivered;
and private clubs.
Shall mean 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 air from the
smoking area is not recirculated to the nonsmoking areas and smoke
is not backstreamed into the nonsmoking areas.
Shall mean 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 air from the smoking area is not recirculated
to the nonsmoking areas and smoke is not backstreamed into the nonsmoking
areas.
Shall mean any product containing or delivering nicotine
or any other substance intended for human consumption that can be
used by a person to simulate smoking through inhalation of vapor or
aerosol from the product. The term includes any such device, whether
manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar,
e-pipe, e-hookah, e-cigarillo, vape pen, or under any other product
name or descriptor.
Shall mean a person who is employed by an employer in consideration
for direct or indirect monetary wages or profit, or a person who volunteers
his or her services for a for-profit or non-profit entity.
Shall mean a person, business, and partnership, and association,
corporation, including a municipal corporation, independent contractors,
trust, or non-profit entity that employs the services of one or more
individual persons.
Shall mean all space between a floor and a ceiling that is
bounded on at least two sides by walls, doorways, or windows, whether
open or closed. A wall includes any retractable divider, garage door,
or other physical barrier, whether temporary or permanent and whether
or not containing openings of any kind.
Shall mean the Health Officer of the Township of West Caldwell,
as appointed by the Board, and his\her designated agents, officers
and inspectors.
Shall mean a water pipe and any associated products and devices
which are used to produce fumes, smoke, and/or vapor from the burning
of material including, but not limited to, tobacco, shisha, or other
plant matter.
Shall mean any establishment, or area within an establishment,
designated specifically for the smoking of tobacco products, purchased
on the premises or elsewhere.
Shall mean any establishment, or area within an establishment,
designated specifically for the smoking of tobacco products, purchased
on the premises or elsewhere.
Shall mean 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 building; board of education building;
theater or concert hall; public library; museum or art gallery; bar;
restaurant or other establishment where the principal business is
the sale of food for consumption on the premises, including the bar
area of the establishment; garage or parking facility; any public
conveyance operated on land or water, or in the air, and passenger
waiting rooms and platform areas in any stations or terminals thereof;
health care facility licensed pursuant to P.L. 1971, c.136 (C.26:2H-1
et seq.); patient waiting room of the office of a health care provider
licensed pursuant to Title 45 of the Revised Statutes; child care
center licensed pursuant to P.L. 1983, c.492 (C.30:5B-1 et seq.);
race track facility; facility used for the holding of sporting events;
ambulatory recreational facility; shopping mall or retail store; hotel,
motel or other lodging establishment; apartment building lobby or
other public area in an otherwise private building; or a passenger
elevator in a building other than a single-family dwelling.
Shall mean a certificate issued by the Health Officer to
a proprietor under the provisions hereof.
Shall mean an area under the control of a public or private
employer, including, but not limited to, work areas, private offices,
employee lounges, restrooms, conference rooms, meeting rooms, classrooms,
employee cafeterias, hallways, construction sites, temporary offices,
and vehicles. A private residence is not a "place of employment" unless
it is used as a child care, adult day care, or health care facility.
Shall mean any park or recreational area designed in part
to be used by children that has play or sports equipment installed
or that has been designated or landscaped for play or sports activities,
or any similar facility located on public or private school grounds
or on Township of West Caldwell grounds.
Shall mean an organization, whether incorporated or not,
which is the owner, lessee, or occupant of a building or portion thereof
used exclusively for club purposes at all times, which is operated
solely for a recreational, fraternal, social, patriotic, political,
benevolent, or athletic purpose, but not for pecuniary gain. The affairs
and management of the organization are conducted by a board of directors,
executive committee, or similar body chosen by the members at an annual
meeting. The organization has established bylaws and/or a constitution
to govern its activities. The organization has been granted an exemption
from the payment of Federal income tax as a club under 26 U.S.C. Section
501.
Shall mean an event which is open to and may be attended
by the general public, including but not limited to, such events as:
concerts, fairs, farmers' markets, festivals, parades, performances,
political rallies and any other gatherings, regardless of any fee
or age requirement.
Shall be designated as those areas which appear on the Municipal
and/or County maps prepared by Omland Engineering and adopted by Township
Ordinance on June 11, 2009.
Shall mean an area to which the public is invited or in which
the public is permitted, including but not limited to, banks, bars,
educational facilities, gambling facilities, health care facilities,
hotels and motels, laundromats, parking structures, public transportation
vehicles and facilities, reception areas, restaurants, retail food
production and marketing establishments, retail service establishments,
retail stores, shopping malls, sports arenas, theaters, and waiting
rooms. A private residence is not a "public place" unless it is used
as a child care, adult day care, or health care facility.
Shall mean any public or private area open to the public
for recreational purposes, whether or not any fee for admission is
charged, including but not limited to: athletic fields, beaches, fairgrounds,
gardens, golf courses, parks, plazas, skate parks, swimming pools,
and trails.
Shall mean an eating establishment, including but not limited
to, coffee shops, cafeterias, sandwich stands, and private and public
school cafeterias, which gives or offers for sale food to the public,
guests, or employees, as well as kitchens and catering facilities
in which food is prepared on the premises for serving elsewhere. The
term "restaurant" shall include a bar area within the restaurant.
Shall be designated as those buildings and/or facilities
which appear on the Municipal and/or County maps prepared by Omland
Engineering and adopted by Township Ordinance on June 11, 2009.
Shall mean an indoor or outdoor line in which one or more
persons are waiting for or receiving service of any kind, whether
or not the service involves the exchange of money, including but not
limited to: ATM (Automatic Teller Machine) lines, concert lines, food
vendor lines, movie ticket lines, and sporting event lines.
Shall mean an enclosed or unenclosed public walkway or hall
area that serves to connect retail or professional establishments.
Shall mean inhaling, exhaling, burning, or carrying any lighted
or heated cigar, cigarette, or pipe, or any other lighted or heated
matter or substance which contains tobacco, plant product or any other
matter that can be smoked which is intended for inhaling and exhaling
of smoke, including hookahs and marijuana, whether natural or synthetic,
in any manner or in any form. "Smoking" also includes the use of an
electronic smoking device which creates an aerosol or vapor, in any
manner or in any form, or the use of any oral smoking device for the
purpose of circumventing the prohibition of smoking in this Article.
Shall mean a place where people assemble to engage in physical
exercise, participate in athletic competition, or witness sports or
other events, including sports pavilions, stadiums, gymnasiums, health
spas, boxing arenas, swimming pools, roller-skating rinks, roller
blading rinks, ice rinks, bowling alleys, and other private facilities
such as dojos, yoga studios and palates studios.
Shall mean an establishment in which at least 51% of retail
business is the sale of tobacco products and accessories, and in which
the sale of other products is merely incidental.
Is a retailer that either devotes 25% or more of floor area
or display area to, or derives 75% or more of gross sales receipts
from, the sale or exchange of electronic smoking devices and/or electronic
smoking device paraphernalia.
Shall mean a structurally enclosed location or portion thereof
at which a person performs any type of service or labor.
[Ord. BH12/2/15]
All enclosed areas, including buildings and vehicles owned,
leased, or operated by the Township of West Caldwell, as well as all
outdoor property adjacent to such buildings and under the control
of the Township of West Caldwell, shall be subject to the provisions
of this Smoke-Free Code.
[Ord. BH12/2/15]
a.
Smoking shall be prohibited in all enclosed public places within
the Township of West Caldwell, including but not limited to, the following
places:
1.
Galleries, libraries, and museums.
2.
Areas available to the general public in businesses and non-profit
entities patronized by the public, including but not limited to, banks,
laundromats, professional offices, and retail service establishments.
3.
Bars.
4.
Bingo facilities.
5.
Child care and adult day care facilities.
6.
Places of assembly.
7.
Educational facilities, both public and private.
8.
Elevators.
9.
Health care facilities.
10.
Lobbies, hallways, and other common areas in apartment buildings,
condominiums, retirement facilities, nursing homes, and other multiple-unit
residential facilities.
11.
Polling places.
12.
Restaurants.
13.
Restrooms, lobbies, reception areas, hallways, and other common-use
areas.
14.
Retail stores.
15.
Rooms, chambers, places of meeting or public assembly, including
school buildings, under the control of an agency, board, commission,
committee or council of the Township of West Caldwell or a political
subdivision of the State, to the extent the place is subject to the
jurisdiction of the Township of West Caldwell.
16.
Service lines.
17.
Shopping malls.
18.
Sports venues, including enclosed places in outdoor venues.
19.
Theaters and other facilities primarily used for exhibiting motion
pictures, stage dramas, private facilities such as dojos, yoga studios,
lectures, musical recitals, or other similar performances.
[Ord. BH12/2/15]
a.
Smoking shall be prohibited in all enclosed areas of places of employment
without exception. This includes, without limitation, common work
areas, auditoriums, classrooms, conference and meeting rooms, private
offices, elevators, hallways, medical facilities, cafeterias, employee
lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
[Ord. BH12/2/15]
Smoking shall be prohibited in all private clubs.
[Ord. BH12/2/15]
a.
Smoking shall be prohibited in the following outdoor places:
1.
Within a distance of 25 feet outside entrances, operable windows,
and ventilation systems of enclosed areas where smoking is prohibited,
so as to prevent tobacco smoke from entering those areas. This includes,
but is not limited to, all outdoor property and buildings owned, leased,
or operated by the Township of West Caldwell and that is under the
control of the Township of West Caldwell.
2.
During any scheduled recreational activities in public spaces and
Township parks, including, but not limited to, all outdoor playgrounds.
3.
In, and within 15 feet of, all outdoor public transportation stations,
platforms, and shelters under the authority of the Township of West
Caldwell.
4.
In outdoor common areas of apartment buildings, condominiums, retirement
facilities, nursing homes, and other multiple-unit residential facilities,
except in designated smoking areas, not to exceed 25% of the total
outdoor common area, which must be located at least 25 feet outside
entrances, operable windows, and ventilation systems of enclosed areas
where smoking is prohibited.
[Ord. BH12/2/15]
a.
Notwithstanding any other provision of this Smoke-Free Code to the
contrary, smoking shall not be prohibited in private automobiles and
private homes or residences, unless the private home or residence
used as a childcare, adult day care, or health care facility.
b.
Notwithstanding any other provision of this Smoke-Free Code to the
contrary, the person having control of a hotel, motel or other lodging
establishment may permit smoking in up to 20% of its guest rooms.
However, 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.
[Ord. BH12/2/15]
Notwithstanding any other provision of this Smoke-Free Code, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section BH14-10 is posted.
[Ord. BH12/2/15]
a.
The owner, operator, manager, or other person in control of a place
of employment, public place, private club, or residential facility
where smoking is prohibited by this Smoke-Free Code shall:
1.
Clearly and conspicuously post "No Smoking" signs or the international
"No Smoking" symbol (consisting of a pictorial representation of a
burning cigarette enclosed in a red circle with a red bar across it)
in that place. Signs to include the prohibition of electronic smoking
devices.
2.
Clearly and conspicuously post at every entrance to that place a
sign stating that smoking is prohibited or, in the case of outdoor
places, clearly and conspicuously post "No Smoking" signs in appropriate
locations as determined by the Township of West Caldwell Department
of Health, private facilities such as dojos, yoga studios or an authorized
designee.
3.
The sign shall also indicate that violators are subject to a fine.
4.
Remove all ashtrays from any area where smoking is prohibited by
this Smoke-Free Code, except for ashtrays displayed for sale and not
for use on the premises.
5.
The person having control of the indoor public place or workplace
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.
6.
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.
[Ord. BH12/2/15]
a.
An establishment that is an indoor public place or a workplace that
intends to claim that the establishment is exempt from the Smoke-Free
Code as a tobacco retail establishment within the meaning of N.J.S.A.
26:3D-57 and 59 shall file, by April 15 of each year, the form of
notice provided in Appendix A incorporated herein by reference, with
the local health agency with jurisdiction over the municipality in
which the establishment is located.[1]
1.
The information contained in the notice required pursuant to paragraph
a above, shall be subject to reporting to and auditing by the Division
of Taxation of the New Jersey Department of the Treasury.
[1]
Editor's Note: Appendix A of Ord. BH:12/2/15 is on file
in the Township Offices.
[Ord. BH12/2/15]
a.
With respect to an establishment that otherwise qualifies as a tobacco
retail establishment, if the establishment is within or part of an
indoor public place or a workplace, such as a retail store within
a shopping mall, the exemption provided at N.J.S.A. 26:3D-59b shall
not apply to the establishment unless the establishment is enclosed
by solid walls or windows, a ceiling, and a solid door, and equipped
with a ventilation system that is separately exhausted from the indoor
public place or workplace in which the tobacco retail establishment
is located, so that air from the tobacco retail establishment is not
recirculated to the indoor public place or workplace and smoke is
not back-streamed into the indoor public place or workplace, and provided
that:
1.
The solid door of the tobacco retail establishment remains closed
at all times except when the door is in use for entry to and egress
from the tobacco retail establishment. The use of a self-closing door
is recommended for this purpose.
2.
The ventilation system of the tobacco retail establishment at all
times is maintained in operable condition to ensure that air from
the tobacco retail establishment is separately exhausted from and
not recirculated to the nonsmoking areas of the indoor public place
or workplace in which the tobacco retail establishment is located,
and that smoke is not back-streamed into the nonsmoking areas; and
3.
The ventilation system shall be maintained in an operable condition
to ensure that air from the tobacco retail establishment does not
cause a public health nuisance (odor) to the public.
[Ord. BH12/2/15]
a.
Except as provided in paragraph b of this section, smoking inside
a tobacco retail establishment is prohibited.
b.
Smoking (tasting) inside a tobacco retail establishment is only for
prepurchase sampling of a cigar or other expensive tobacco product,
prior to making a multi-unit purchase. Smoking (tasting) inside a
tobacco retail establishment shall be limited to no more than two
minutes prior to making a multi-unit purchase from the tobacco retail
establishment.
c.
Seating, chairs, TVs, food/beverage menus and signage that condones
continued smoking beyond prepurchase sampling.
d.
Smoking in exterior areas that can result in migration, seepage,
or recirculation of smoke to an indoor public place or a workplace
at which smoking is prohibited. As such, all outdoor smoking shall
be limited to 25 feet outside entrances, operable windows, and ventilation
systems of enclosed areas.
e.
Private parties, food or drink, card games or gambling, game of chance,
outdoor seating, and alcoholic beverage.
[Ord. BH12/2/15]
a.
Upon reviewing an executed form of Notice and any supporting documentation
or information an entity submits pursuant to N.J.A.C. 8:6-4.1, the
West Caldwell Health Department requires the entity to provide the
West Caldwell Health Department and any experts retained by the West
Caldwell Health Department, with access to inspect one or more of
the following:
1.
Records of sales of tobacco products and accessories, and records
of sales of other products; and
b.
The West Caldwell Health Department shall schedule any inspections
it may require pursuant to paragraph a., above, so that the inspections
occur within 20 business days of West Caldwell Health Department's
receipt of a completed notice and supporting documentation.
[Ord. BH12/2/15]
a.
No proprietor shall operate a tobacco retail establishment in the
Township of West Caldwell unless such proprietor has registered the
tobacco retail establishment with the Board of Health and has received
a license from the Health Officer.
b.
A person purchasing a tobacco retail establishment after the effective
date of this chapter shall apply for a new license no later than 10
days prior to commencing operation under new ownership. Operators
of licensed tobacco retail establishment are required to notify the
Board of Health of the impending sale of the tobacco retail establishment
no later than 30 days prior to the sale.[1]
c.
All licenses for a tobacco retail establishment shall be renewed
by January 31, each year of operation.
[Ord. BH12/2/15]
[Ord. BH12/2/15]
Any use not specifically permitted in a zone district established
by this chapter is specifically prohibited for that district, and
more particularly the following uses and activities and related or
similar uses and activities are prohibited on every and all properties
in the Township of West Caldwell:
[Ord. BH12/2/15]
This Smoke-Free Code shall be enforced by the Health Officer
or their designee, Township Administrator, the West Caldwell Police
Department and any other County or State official having control over
these types of establishments.
[Ord. BH12/2/15]
a.
A person having control of an indoor public place or workplace shall
order a person smoking in violation of the Code and this chapter (person
smoking illegally) to comply with the Code and this chapter, and may
elect to provide the person smoking illegally with a copy of the notice
provided at Appendix B, incorporated herein by reference.[1]
[1]
Editor's Note: Appendix B of Ord. BH:12/2/15 is on file
in the Township offices.
b.
If, after having been ordered to comply with the Code and this chapter
in accordance with paragraph a., above, a person smoking illegally
continues to violate the Code and this chapter, the person having
control of the indoor public place or workplace:
1.
Shall order the departure and removal of the person smoking illegally
from the indoor public place or workplace; and
2.
In the discretion of the person having control of the indoor public
place or workplace, s/he may request the assistance of law enforcement
or peace officers with jurisdiction over the indoor public place or
workplace to accomplish this departure and removal.
c.
A person may file a complaint against a person smoking illegally
in accordance with N.J.S.A. 26:3D-62 by:
d.
In addition to the fines and penalties listed in Section BH14-15: Fines for Violations, this section shall not be construed to impair the ability of Township of West Caldwell Police Department or Health Department with jurisdiction to charge a person under any other applicable law, including N.J.S.A. 2C:33-13.
[Ord. BH12/2/15]
a.
Any person may file a complaint against a person having control of
an indoor public place or workplace who violates or fails or refuses
to comply with or enforce the Smoke-Free Code and this chapter by:
1.
Contacting the local health agency with jurisdiction over the indoor
public place or workplace and by adhering to complaint procedures
each local health agency shall establish;
2.
Filing a complaint directly with the municipal court with jurisdiction
over the establishment, or
3.
Filing the form of complaint at Appendix C, with the New Jersey Department
of Health Indoor Environments Program.
[Ord. BH12/2/15]
a.
A person may submit an anonymous request for the performance of an
investigation of an indoor public place or workplace for alleged violation
of, or failure or refusal to comply with or enforce the Smoke-Free
Code and this chapter by:
1.
Contacting the local health agency with jurisdiction over the indoor
public place or workplace and by adhering to anonymous investigation
request procedures each local health agency shall establish; or
b.
An anonymous request for investigation shall not be evidence of a
violation of, or a failure or refusal to comply with or enforce the
Smoke-Free Code and this chapter.
[Ord. BH12/2/15]
a.
A person having control of an establishment shall permit full access
to the establishment, for the purposes of examination, inspection,
investigation, and enforcement of the Smoke-Free Code and this chapter,
to:
