[HISTORY: Adopted by the Mayor and Council of the Borough of Dunellen as indicated in article histories. Amendments noted where applicable.]
[Adopted 5-6-2019 by Ord. No. 2019-05]
The Borough Council finds that:
A. 
Numerous studies have found that tobacco smoke is a major contributor to outdoor pollution and breathing secondhand smoke is a cause of disease in healthy nonsmokers.
B. 
Secondhand smoke is particularly hazardous to children, the elderly, individuals with cardiovascular disease and individuals with impaired respiratory function, including asthmatics and those with obstructed airway disease.
C. 
The smoking of tobacco products is also a form of air pollution, a danger to health and a material public nuisance.
D. 
Electronic smoking devices have not been approved as to safety and efficacy by the federal Food and Drug Administration, and their use may pose a health risk to persons exposed to their smoke or vapor because of a known irritant contained therein and other substances that may, upon evaluation by that agency, be identified as potentially toxic to those inhaling the smoke or vapor.
E. 
As a result, the governing body of the Borough of Dunellen hereby adopts the foregoing as justification for this chapter with the purpose of protecting the public health and welfare by prohibiting smoking in certain smoke-free public places, which are more specifically defined below, to guarantee the right of nonsmokers to breathe smoke-free air and to recognize the public's need to breathe smoke-free air as a priority over an individual's desire to smoke.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
PUBLIC PARK, OPEN SPACE AND RECREATIONAL AREA
All public parks, playgrounds, ball fields, and open land which are open to the public, and which are publicly owned or leased by the Borough of Dunellen, and all property owned or leased by the Borough of Dunellen upon which the public is invited or upon which the public is permitted and where individuals gather for recreational activities, including all areas adjacent to such facilities, including, but not limited to, any parking area, driveway or drive aisle.
SMOKING
Inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe or other lighted tobacco product or any other lighted substance, or the inhaling, exhaling, burning or carrying of smoke or vapor from an electronic smoking device, whether otherwise legally possessed or consumed, in any manner or in any form.
A conspicuous sign clearly stating that smoking is prohibited shall be posted at each park, open space and recreational area. The international "No Smoking" symbol may also be used, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it.
This chapter shall be enforced by the Dunellen Police Department, Code Enforcement Officer, and Public Health Officer.
Any person who violates any provision of this chapter shall 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.
[Adopted 3-15-2021 by Ord. No. 2021-04]
The purpose of this article is to license and limit the establishments that sell electronic smoking devices and prevent the sale of electronic smoking devices to those under the age of 21. A portion of the funds collected by licensing of such establishments may be designated by the Mayor and Borough Council for salient purposes such as funding smoking cessation, prevention or control programs by the Dunellen Police Department and/or other organizations deemed appropriate.
For the purpose of this section, the following terms, phrases, words and their derivations shall have the meanings stated herein unless their use in the text of this section clearly demonstrates a different meaning. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number shall include the singular number, and words used in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
BOROUGH
The term "Borough" as used herein shall refer to the Borough of Dunellen, its officers, employees and representatives.
DISPLAY WINDOW
Window in a shop/store displaying or advertising items for sale or otherwise designed to attract customers to the store.
ELECTRONIC SMOKING DEVICE
An electronic or other powered device that can be used to deliver a product such as or containing nicotine or any other substances to the person inhaling from the device, including but not limited to, an electronic cigarette, cigar, cigarillo, hookah or pipe.
ELECTRONIC SMOKING DEVICE ESTABLISHMENT
Any establishment that sells or offers for sale electronic smoking devices and/or electronic smoking device products designed for consumption through inhalation, regardless of whether the sale of such devices or products is the establishment's primary purpose.
ELECTRONIC SMOKING DEVICE PRODUCT
Any product such as or containing nicotine or any other substance designed for consumption through inhalation from an electronic smoking device.
SALE
Every delivery of electronic smoking devices or electronic smoking device products, whether the same is by direct sale or the solicitation or acceptance of an order, including the exchange, barter, traffic in, keeping and exposing for sale, displaying for sale, delivering for value, peddling and possessing with intent to sell.
A. 
No person shall conduct, maintain or operate an establishment that sells electronic smoking devices without first having obtained a license from the Borough Clerk or his/her designee.
B. 
Each person or establishment wishing to sell electronic smoking devices or electronic smoking device products must submit a completed license application on a form obtained from the Borough Clerk's office, together with the appropriate fee as set forth herein, in order to be considered for an initial license.
C. 
Fees in accordance with the following schedule shall be paid before any license required in this article shall be issued:
(1) 
Electronic smoking device establishment initial license: $750.
(2) 
Electronic smoking device establishment annual renewal license: $250.
D. 
Initial or renewal licenses issued under the provisions of this article, unless revoked earlier by the Board of Health or Borough Clerk, shall expire annually on the 31st day of December of each year;
E. 
The annual license renewal fee must be paid annually by the 31st day of December for the upcoming calendar year, or a renewal license shall not issue and the person or establishment wishing to continue to sell electronic smoking devices or electronic smoking device products shall be prohibited from selling them until such time that the fee is paid and a renewal license is issued;
F. 
Licenses are not transferable; and
G. 
The license issued by the Borough shall be posted conspicuously in the establishment, in a location and manner visible to all customers and all police officers or other inspectors on behalf of the Borough.
H. 
The Borough shall inspect each such establishment prior to the issuance of an initial license to determine if the applicant satisfies the requirements of this article in order to qualify to obtain a license. The Borough shall thereafter conduct random periodic inspections during normal business hours of the establishment after issuance of an initial or renewal license to determine whether the establishment is acting in compliance with the provisions of this article. Such inspections may be conducted by members of the Dunellen Borough Police Department, Health Department, Dunellen Borough Code Enforcement Office and the Dunellen Borough Clerk's Office.
If any fee is not paid within 30 days of its due date, a late fee surcharge of $75 will be assessed for each calendar month or any part thereof following the due date of such fee.
[Added 12-19-2022 by Ord. No. 2022-31]
A. 
Any person or establishment found to be selling or offering any electronic smoking device or any electronic smoking device product without having first obtained a valid license issued by the Borough shall pay a fine of $500 for a first such offense. In addition, any such person or establishment found to be selling or offering any electronic smoking device or electronic smoking device product shall be ineligible to sell any such devices or products unless and until a license is obtained from the Borough of Dunellen. For a second or subsequent offense, any person or establishment so violating this section shall be subject to a fine of not less than $1,000 and not exceeding $2,000. In addition, any person or establishment violating this section for a second or more time may be subject to permanent disqualification for obtaining an electronic smoking device license, within the discretion of the Borough Clerk and/or Borough Council.
B. 
Each sale shall constitute a separate offense for purposes of this section.
No electronic smoking device, electronic smoking device product or advertisement relating to either an electronic smoking device or electronic smoking device product shall be displayed in such a manner so as to be visible from the exterior of the establishment.
A. 
Penalties for sale to persons under the age of 21 years old. Any person or establishment found to have sold an electronic smoking device or an electronic smoking device product to any person under the age of 21 years old shall pay a fine of not less than $500 for a first such offense. In addition, any person or establishment found to be in violation of this section may have their license revoked for the remainder of the calendar year. Upon conviction for a second or subsequent offense of selling an electronic smoking device or electronic smoking device product to anyone under the age of 21 years old, any person or establishment shall be subject to a fine of not less than $1,000 nor more than $2,000. In addition, any person or establishment violating this section for a second or subsequent time shall have their license revoked for the remainder of the calendar year. In addition to the other penalties as set forth herein, any person or establishment found guilty of selling an electronic smoking device or electronic smoking device product for a third or subsequent time shall have their license permanently revoked.
B. 
Jurisdiction for enforcement of this section shall be laid in the Municipal Court of the Borough of Dunellen or any other court so designated by the Municipal Court of the Borough of Dunellen.
C. 
These penalties are in addition to any penalties that may be imposed pursuant to the New Jersey Code of Juvenile Justice, N.J.S.A. § 2A:170-51 et seq. and N.J.S.A. 2C:33-13.1 et seq. or any other statute of the State of New Jersey which pertains to the sale of electronic smoking devices or the consumption of electronic smoking device products.
D. 
Penalties for display or location violations. Any person or establishment found guilty of the improper display of an electronic smoking device, product or advertisement as set forth in § 240-11 of this article, or the sale of an electronic smoking device or product at any location in violation of § 240-12 of this article shall, for a first such offense, be subject to a fine of $500. For a second or subsequent violation of this section, any such person or establishment shall be subject to a fine of not less than $1,000 nor more than $2,000. In addition, any person or establishment violating this section for a second or subsequent time shall have their license revoked for the remainder of the calendar year. Any person or establishment found guilty of this section for a third or subsequent time shall have their license permanently revoked.
Enforcement shall be by the Dunellen Borough Police Department, Health Department and Dunellen Borough Code Enforcement Office.