[2000 Code § 18:5-1]
A code defining and prohibiting certain matters, things, conditions
or acts and each of them as a nuisance, prohibiting certain noises
or sounds, requiring the proper heating and cooling of apartments,
prohibiting lease or rental of certain buildings, prohibiting spitting
in or upon public buildings, conveyances or sidewalks, authorizing
the inspection of premises by an enforcing official, providing for
the removal or abatement of certain nuisances and recovery of expenses
incurred by the Borough in removing or abating such nuisances and
prescribing penalties for violations is hereby established pursuant
to Chapter 188, Laws of 1950. A copy of the code is annexed hereto
and made a part hereof without the inclusion of the text herein.
[2000 Code § 18:5-2]
The public nuisance code established and adopted by this chapter
is described and commonly known as the "Public Health Nuisance Code
of New Jersey (1953)."
[2000 Code § 18:5-3]
Three (3) copies of the "Public Health Nuisance Code of New
Jersey (1953)" have been placed on file in the office of the Borough
Clerk and will remain on file there for the use and examination of
the public.
[2000 Code § 18:5-4; New]
The code is amended in subsection 18-1.1 to read as follows:
a.
Enforcement officials shall mean and include any of the following:
1.
Code Enforcement Official of the Borough;
2.
Zoning Code Official;
3.
The Construction Official;
4.
The Subcode Officials;
5.
Representatives of the Cape May County Department of Health;
6.
The Chief of Police or any member of the Avalon Police Department
as well as any other official authorized by resolution of the Borough
Council to enforce this Code;
7.
Fire Official;
8.
Fire Inspector.
[Added 6-23-2021 by Ord. No. 823-2021]
Borough Council hereby adopts the factual findings and declarations
of the New Jersey Legislature as specified in the Smoke-Free Air Act
(the "Act") (N.J.S.A. 26:3D-56) as its own:
a.
Tobacco is the leading cause of preventable disease and death in
the State and the nation;
b.
Tobacco smoke constitutes a substantial health hazard to the nonsmoking
majority of the public;
c.
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;
d.
The separation of smoking and nonsmoking areas in indoor public places
and workplaces does not eliminate the hazard to nonsmokers if these
areas share a common ventilation system;
e.
The prohibition of smoking at public parks and beaches would better
preserve and maintain the natural assets of this state by reducing
litter and increasing fire safety in those areas, while lessening
exposure to secondhand tobacco smoke and providing for a more pleasant
park or beach experience for the public; and
f.
Therefore, subject to certain specified exceptions, it is clearly
in the public interest to prohibit the smoking of tobacco products
and the use of electronic smoking devices in all enclosed indoor places
of public access and workplaces and at all public parks and beaches.
g.
In addition, Borough Council further finds and determines that: Smoke
or second-hand smoke, that is, smoke generated from 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 substance that can be smoked, or the inhaling
or exhaling of smoke or vapor from an electronic smoking device is
harmful and deleterious to the public health, safety and welfare.
a.
The Act (Smoke-Free Air Act) now prohibits smoking in all indoor
public places and workplaces and at a public park or beach and further
prohibits smoking 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.
b.
And since the Act is binding upon all municipalities in the State
of New Jersey, and except, as expressly excepted herein, and in reliance
on the Act, the Borough intends to prohibit smoking in the interior
of all public buildings and facilities, as well as in and on the exterior
of all public buildings and facilities; in the interior of all quasi-public
buildings and facilities; in the interior workplace of all business
and commercial enterprises, including, but not limited to, bars and
food service establishments, offices, retail establishments, grocery
stores, convenience stores, and other similar type operations in order
to address the health hazards of smoking, including the inhaling and
exhaling of smoke, including the recognized dangers of second-hand
smoke, and for the purpose of protecting the public health, safety,
and welfare.
c.
It is the intention of this section to restrict smoking to private
homes, a partments, or residences and to private automobiles or motor
vehicles. It is the further intent to restrict smoking to those sections
of hotels and motels that are specifically reserved for smoking.
a.
BAR
CIGAR BAR
CIGAR LOUNGE
ELECTRONIC SMOKING DEVICE
INDOOR PUBLIC PLACE
PERSON HAVING CONTROL OF A PUBLIC PARK OR BEACH
PERSON HAVING CONTROL OF AN INDOOR PUBLIC PLACE OR WORKPLACE
PUBLIC PARK OR BEACH
SMOKING
TOBACCO RETAIL ESTABLISHMENT
WORKPLACE
As used in this section, the following words shall have the following
meaning unless the context clearly requires a different meaning:
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 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 air from the smoking
area is not recirculated to the nonsmoking areas and smoke is not
back-streamed into the nonsmoking areas.
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 back-streamed into the nonsmoking
areas.
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 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 (N.J.S.A.
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 (N.J.S.A. 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.
The person having supervisory authority over a public park
or beach or that person's designee, as applicable.
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.
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 that 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, and 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.
b.
PLAYGROUND
PUBLIC PROPERTY OR FACILITIES AND PUBLIC PLACES
QUASI-PUBLIC BUILDINGS AND FACILITIES
The following additional definitions shall be included in this section:
An area of land designated by the term "playground" and equipped
with recreation equipment specially designed for young children such
as swings, sliding boards and other equipment of the same or similar
type. The term shall include the definition of "public property or
facilities and public places" defined herein.
All Borough-owned or -controlled parks, public rights-of-way,
public streets, beaches, beach accesses, boardwalk, athletic fields,
marinas (Sport Fishing Center and Bay Park Marina), playgrounds, buildings
and grounds, and shall include the area within the buildings, outside
areas, and appurtenances and all other Borough-owned or -controlled
facilities.
Any commercial operation which is engaged in the sale or
services of goods or services and to which the public is invited during
scheduled hours of operation although the same is under private ownership
or control. [Source: Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/quasi-public]
Smoking shall be prohibited:
a.
In all public buildings and on all public grounds adjacent to or
upon which any public building is located or constructed including
any parking area or parking lot associated therewith. This includes,
but not limited to, Borough Hall, Senior Center, Community Hall, History
Center, Office Complex at 39th Street, Public Works Building and facility,
Public Safety Building, including the Fire Department and the Rescue
Squad, and all buildings and grounds under the supervision and control
of the Avalon Board of Education.
b.
In all parks, playgrounds, the beach and boardwalk and the approaches
thereto; all recreation fields under the supervision and control of
the Borough.
c.
In all Borough motor vehicles and equipment.
d.
In all public rest rooms.
e.
On all public sidewalks and in the right-of-way in the downtown business district, that is from 19th Street to 34th Street on Dune Drive except as stated in Subsection f below. This prohibition is due to the number of individuals, families and children that routinely visit this area and due to the overall congestion that exists therein.
f.
Food service establishments, including those licensed for the sale
and consumption of alcoholic beverages, and which are approved for
outdoor dining pursuant to TERP 2021 (Avalon Temporary Emergency Rescue
Plan) or otherwise, may permit smoking outdoors, at the owner-operator's
option, but only on the exterior portion of the premises which is
part of the deeded property and not in the Borough right-of-way notwithstanding
the fact that a portion of the right-of-way has been approved for
outdoor dining/drinking in that area.
Cross reference: See § 18-2.5h.
g.
In any indoor public place or workplace including bars, restaurants,
and any business or commercial workplace.
h.
In halls or facilities affiliated with any church or other nonprofit
organization. This shall include both nonprofit and for-profit enterprises
which are open to or available to members of the organization or the
public.
i.
The owner-operator of any business which has a designated private
off-street parking area for the convenience of its customers may,
at the option of the owner or operator, prohibit smoking in such parking
area and, unless prohibited by such owner-operator smoking shall be
permitted. If smoking is prohibited, then appropriate signage shall
be posted to that effect.
This section shall not prohibit smoking or apply to any of 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,
not including any sales from vending machines, and is registered with
the local board of health in the municipality in which the bar or
lounge is located. The 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 31, 2004;
[Source: State statute]
b.
Any tobacco retail establishment, or any area the tobacco retail
establishment provides for the purposes of smoking; [Source: State
statute]
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; [Source: State statute]
d.
Private homes, private residences, and private automobiles; provided, however, that the owner or managing agent or any rental property licensed by the Borough may prohibit, by lease or otherwise, smoking in the rental unit and on the adjacent grounds and property. Any such prohibition, if enacted, shall be the responsibility of the owner or the Managing Agent to enforce in the same manner as other landlord-tenant matters are adjudicated in New Jersey but an owner or managing agent shall have no private right of enforcement under this section. (See § 18-2.6, infra, Violations, Fines, etc.) The Borough shall have no power or authority to enforce any such private restriction or prohibition applicable to rental properties or units.
e.
The owner-operator of any business which has a designated private off-street parking area for the convenience of its customers may, at the option of the owner or operator, prohibit smoking in such parking area and, unless prohibited by such owner-operator, smoking shall be permitted. If smoking is prohibited, then appropriate signage shall be posted to that effect. Cross reference: See Section 18-2.4i.
f.
Any business or commercial enterprise, including bars and/or food
service establishments may, in the discretion of the owner-operator,
designate a section of its exterior private property where smoking
is permitted for the convenience of the owner or employees. Any such
area must be clearly marked and identified, and it shall be an area
where customers and patrons do not generally transact business or
consume food or drink. Such area shall be clearly marked by appropriate
signage designating it as a smoking permitted zone.
g.
When so requested by one or more employees, the Department Head in charge of each municipal building or facility shall designate an exterior space where employees may smoke during breaks. Such area shall be clearly delineated, and smoking shall be confined to that specific area and none other. The location shall be remote from areas where the public come to transact business and may be changed by the Department Head from time to time as circumstances require. The designated location shall be approved by the Department/Division Head and the Business Administrator and such location may be changed from time to time as deemed necessary. In accordance with § 18-2.4c above, smoking is prohibited in all Borough motor vehicles and equipment.
h.
Food service establishments, including those licensed for the sale
and consumption of alcoholic beverages, and which are approved for
outdoor dining pursuant to TERP 2021 (Avalon Temporary Emergency Rescue
Plan) or otherwise, may permit smoking outdoors, at the owner-operator's
option, but only on the exterior portion of the premises which is
part of the deeded property and not in the Borough right-of-way notwithstanding
the fact that a portion of the right-of-way has been approved for
outdoor dining/drinking in that area.
i.
Smoking shall be permitted in any area or location except where it
is expressly prohibited by this section.
a.
The person having control of an indoor public place or workplace shall order any person smoking in violation of this section to comply with the provisions of this section. A person, after being so ordered, who smokes in violation of this section 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 of Subsections c and d of this section.
b.
The Borough Council, as the Local Board of Health or the board, body,
or officers exercising the functions of the local board of health
according to law, upon written complaint or having reason to suspect
that an indoor public place or workplace covered by the provisions
of this section is or may be in violation of the provisions of this
section, 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 herein, the court may
order immediate compliance with the provisions of this act and this
section.
c.
A penalty recovered under the provisions of this act/chapter shall
be recovered by and in the name of the local board of health. When
the plaintiff is a local board of health, the penalty recovered shall
be paid by the local board into the treasury of the municipality where
the violation occurred.
d.
The Superior Court or a municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of this act/chapter if the violation has occurred within the territorial jurisdiction of the court, except that the Superior Court shall have exclusive jurisdiction over violations that occur in an indoor public place or public park or beach that may be issued against a state or local government entity pursuant to Subsection b of this section. The proceedings shall be summary and in accordance with the "Penalty Enforcement Law of 1999," P.L. 1999, c. 274 (N.J.S.A. 2A:58-10 et seq.). Process shall be in the nature of a summons and shall issue only at the suit of the local board of health, as plaintiff.
f.
A penalty may be imposed and recovered for a violation at a public
park or beach and, if so imposed and recovered, it shall be done in
accordance with the provisions of this section, and shall involve
the person having control of a public park or beach, 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 according to
law, and the courts, as provided in this section, except that any
penalty recovered for a violation at a public park or beach that is
recovered by and in the name of the Commissioner of Health or by and
in the name of the local board of health shall be paid 50% to the
Treasury of the State and be dedicated to smoking cessation programs
administered by the State Department of Health, and 50% shall be paid
to the treasury of the municipality where the violation occurred.
g.
Borough Council is hereby authorized to appoint one or more individuals
to enforce this section on its behalf. Such appointees may include
the Chief of Police and any individual(s) so designated by the Chief.
Borough Council is empowered to adopt rules and regulations
to aid in the efficient and orderly enforcement of this section. Such
rules and regulations shall be adopted by resolution.
