ASSEMBLY, No. 93
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblymen ROONEY and RUSSO
An Act concerning smoking in restaurants and amending P.L.1985, c.185.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1985, c.185 (C.26:3E-8) is amended to read as follows:
2. As used in this act:
[a.] "Bar area" means [an establishment or] a portion of a restaurant, including any bar counter, contiguous lounge, seating area or common area, in which the principal business is the sale and service of alcoholic beverages for consumption on the premises of [such establishment or in such portion of a] the restaurant. The term "bar area" shall not include the dining area of a restaurant, even when food is sold, served or consumed in the bar area, when alcoholic beverages are sold, served or consumed in the dining area or when the dining area is directly adjacent to or surrounds the bar area.
"Dining area" means any indoor area of a restaurant open to the public or invited guests, the primary purpose and use of which is to seat patrons of the restaurant for consumption of food sold on the premises, whether or not table service of that food is provided. The term "dining area" shall not include any bar area of a restaurant, even when food is sold, served or consumed in the bar area, when alcoholic beverages are sold, served or consumed in the dining area or when the dining area is directly adjacent to or surrounds the bar area.
[b.] "Restaurant" means [an] any establishment containing an indoor area open to the public in which the principal business and purpose of the area is the sale of food for consumption on the premises , and includes, but is not limited to, restaurants, cafeterias, luncheonettes, soda fountains, coffee shops, diners, sandwich shops or short order cafes and places providing food and service as for parties and other privately sponsored social affairs. The term "restaurant" shall not include any mobile food establishment, any temporary food establishment that operates at a fixed location for a limited period of time in connection with a fair, carnival, public exhibition or similar transitory gathering or charitable fund raising event, or any tavern.
[c.] "Smoking" means the burning of a lighted cigar, [cigarette,] pipe or any other matter or substance which contains tobacco except cigarettes.
"Tavern" means any establishment containing an indoor area open to the public in which the principal business and purpose of the area is the sale and service of alcoholic beverages for consumption on the premises and where the sale or service of food, if any, is incidental to the consumption of the beverages. The sale or service of food shall be considered incidental if the food sold by the establishment generates less than 40 percent of the total annual gross sales for that establishment. The term "tavern" shall include, but is not limited to, any establishment commonly referred to as a bar where the sale of food generates less than 40 percent of the total annual gross sales for that establishment, but shall not include restaurants with bar areas in which the total annual gross sales of food in the bar area may be less than 40 percent of the total annual gross sales in that area of the restaurant.
(cf: P.L.1985, c.185, s.2)
2. Section 3 of P.L.1985, c.185 (C.26:3E-9) is amended to read as follows:
3. a. (1) The provisions of this act shall apply to all restaurants but shall not apply to any [bar] tavern. Except as provided in this section, smoking shall be prohibited in all restaurants, without regard to seating capacity.
(2) A restaurant with a bar area, an outdoor seating area or other outdoor area may permit smoking in those areas. No provision of this act shall be construed to restrict any owner, operator or manager of any restaurant from prohibiting smoking in all areas of the restaurant, or from designating smoking and nonsmoking areas within the bar area, outdoor seating area or other outdoor area of the restaurant. Furthermore, no provision of this act shall be construed to restrict the sale, service or consumption of food in the bar area, outdoor seating area or other outdoor area of a restaurant or to restrict the sale, service or consumption of alcoholic beverages in the dining area of a restaurant.
[A] (3) Every restaurant [which provides a nonsmoking section] shall post a sign no smaller than eight inches by five inches at or near, and readily visible from, each public entrance stating [that "This restaurant offers a nonsmoking area." A restaurant which does not provide a nonsmoking section shall in the same manner post a sign stating that "This restaurant does not offer a nonsmoking area, as permitted by law." A restaurant which is equipped with air cleaners or air recirculating systems which meet the standards of the model code of the Building Officials and Code Administrators International, Inc., known as the "BOCA Basic National Building Code 1984," as administered by the State Department of Community Affairs, shall in the same manner, post a sign stating, "Approved air-cleaning equipment is installed in place of a nonsmoking area." This requirement]: "Smoking of cigars and pipes is not permitted in the dining area of this restaurant under State law." In the case of a restaurant with a bar area, outdoor seating area or other outdoor area, the owner, operator or manager of the restaurant shall post conspicuous indoor signs advising patrons where smoking of cigars or pipes or both is permitted and prohibited.
(4) The provisions of paragraph 1 of this subsection shall not apply [to any indoor portion of a restaurant while it is being used for a privately sponsored social affair or which is outdoors] to a bar area, outdoor seating area or other outdoor area of a restaurant, when the owner, operator or manager of the restaurant has determined that smoking shall not be prohibited in those areas.
b. [The size and location of a nonsmoking area shall be determined by the owner or manager or person in charge in accordance with patron needs.] Deleted by amendment, P.L. , c. (now pending before the Legislature as this bill).
c. Employees of a restaurant shall be prohibited from smoking in the dining area of the restaurant and in any other area of the restaurant in which the owner, operator or manager of the restaurant has determined smoking shall be prohibited.
(cf: P.L.1985, c.185, s.3)
3. Section 4 of P.L.1985, c.185 (C.26:3E-10) is amended to read as follows:
4. a. [The State or any agency or political subdivision thereof may suggest guidelines for establishing nonsmoking areas in restaurants which may be adopted by the owner, manager or person in charge but in no case shall they be mandatory.] Deleted by amendment, P.L. , c. (now pending before the Legislature as this bill).
b. The provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking in restaurants except [where smoking is prohibited by municipal ordinance under authority of R.S.40:48-1 and 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.] that nothing in this act shall be construed to prohibit a municipality from adopting an ordinance prohibiting or restricting smoking in restaurants that is more stringent than that provided for in this act.
(cf: P.L.1985, c.185, s.4)
4. Section 5 of P.L.1985, c.185 (C.26:3E-11) is amended to read as follows:
5. a. Any local health official, including a municipal or county health official , or [other public servant engaged in executing or enforcing] , notwithstanding the provisions of chapter 3 of Title 26 of the Revised Statutes to the contrary, a municipal law enforcement officer trained and authorized by the local board of health to enforce this act, shall enforce the provisions of this act. The local health official or law enforcement officer, acting upon a verbal or written complaint by a restaurant owner, operator, manager, employee or patron, shall order any person smoking in violation of this act to comply with the provisions of this act. [Thereupon any such] Any person who [smokes] , after receiving this order, continues to smoke in a restaurant in violation of this act is subject to a fine not to exceed [$25.00] $50.
The owner, operator, manager or person in charge of the restaurant or any agent thereof shall [only] be responsible for [providing signs governing smoking pursuant to section 3 of this act and shall not be responsible for the enforcement of the provisions of this act] informing any person smoking in the dining area or other areas of the restaurant in which smoking is prohibited that the person smoking may be in violation of the law, and for directing the person to cease smoking in that area. If there is an area of the restaurant in which the person is permitted to smoke, the owner, operator, manager, person in charge or agent thereof shall direct that person to that area and request that the person relocate to that area if the person smoking wishes to continue to smoke in the restaurant. The inability of the owner, operator, manager, person in charge or agent thereof to obtain compliance from the person smoking in violation of this act shall not constitute a violation on the part of the restaurant for the purposes of subsection b. of this section.
b. The State Department of Health or the local board of health or any board, body or officer exercising the functions of the local board of health according to law, upon written complaint and having reason to suspect that any restaurant is or may be in violation of the provisions of this act shall, by written notification, advise the owner, operator, manager or person in charge of the restaurant accordingly and order appropriate action to be taken. [Thereupon any person] A local board of health shall, during the course of sanitary inspections, monitor compliance with this act, and by written notification shall advise the owner, operator, manager or person in charge of any violation and order appropriate action to be taken. Any restaurant owner, operator or manager receiving [such] a notice who knowingly fails or refuses to comply with the order is subject to a fine not to exceed [$25.00] $100 for a first offense, $200 for a second offense and $500 for a third or subsequent offense.
The inability of the owner, operator or manager to exercise control of the premises during an absence shall constitute a defense to a prosecution under this act, provided that the respondent submits a sworn affidavit by certified mail and any other proof that he could not exercise actual control during that time.
c. Any penalty recovered under the provisions of this act shall be recovered by and in the name of the Commissioner of Health of the State of New Jersey or by and in the name of the local board of health. When the plaintiff is the Commissioner of Health, the penalty recovered shall be paid by the commissioner into the treasury of the State. 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. [Every] The Superior Court and the municipal court shall have jurisdiction over proceedings to enforce this act and to impose and collect any penalty [imposed because of] for a violation [of any provision of this act] thereof, if the violation has occurred within the territorial jurisdiction of the court. The proceedings shall be summary and in accordance with "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). Process shall be in the nature of a summons or warrant and shall issue only at the suit of the Commissioner of Health of the State of New Jersey, or the local board of health, as the case may be, as plaintiff.
(cf: P.L.1985, c.185, s.5)
5. Section 6 of P.L.1985, c.185 (C.26:3E-12) is amended to read as follows:
6. No owner, operator, manager or person in charge of [the] a restaurant or any agent thereof who [has provided signs governing smoking pursuant to section] complies with the provisions of sections 3 and 5 of [this act] P.L.1985, c.185 (C.26:3E-9 and C.26:3E-11) shall be subject to any action in any court by any party either under [this act] P.L.1985, c.185 (C.26:3E-7 et seq.) or at common law, except for an action instituted by an employee pursuant to Title 34 of the Revised Statutes, provided that the Commissioner of Health of the State of New Jersey may bring an action against the owner, operator, manager or person in charge of the restaurant or any agent thereof for failure to meet the provisions of this act.
(cf: P.L.1985, c.185, s.6)
6. Section 7 of P.L.1985, c.185 (C.26:3E-13) is amended to read as follows:
7. The Assembly Judiciary, Law and Public Safety Committee [of the General Assembly,] and the Senate Law[,] and Public Safety [and Defense] Committee [of the Senate] , or their respective successors, are constituted a joint committee for the purposes of monitoring and evaluating the effectiveness of the implementation of [this act] P.L. , c. (now before the Legislature as this bill). The Commissioner of Health of the State of New Jersey shall, one, three, and five years from the effective date of [this act] P.L. , c. (now before the Legislature as this bill), report to the joint committee an evaluation of the effectiveness of this act and the committee shall, upon receiving such report, issue, as it may deem necessary and proper, recommendations for administrative or legislative changes affecting the implementation of [this act] P.L. , c. (now before the Legislature as this bill).
(cf: P.L.1985, c.185, s.7)
7. This act shall take effect January 1, 1996.
STATEMENT
This bill prohibits smoking of cigars and pipes in the dining areas of restaurants and catering establishments, regardless of seating capacity commencing January 1, 1996. Taverns would be excluded from the prohibition, and the owner, operator or manager of a restaurant would be given discretion in permitting and regulating smoking in the bar areas, outdoor seating areas and other outdoor areas of the establishment. A restaurant would not be excluded from the prohibition when it is being used for privately sponsored social affairs. A tavern is defined in the bill as an establishment containing an indoor area the principal business and purpose of which is the sale and service of alcoholic beverages for consumption on the premises, and where the sale of food generates less than 40 percent of its annual gross sales. The owner, operator or manager of a restaurant would be required to post signs at the entrances to the restaurant notifying patrons of the prohibition, and to provide additional signs indicating the area of the restaurant, if any, in which patrons may smoke pipes or cigars or both.
The bill would require the local board of health, during the course of sanitary inspections, to monitor compliance with the requirements of the law, and to provide written notice of any violation to the restaurant's owner, operator or manager. Citations would be issued by local health officers, municipal or county health officials, or municipal law enforcement personnel trained and authorized by the local board of health for the purposes of enforcing the law. Under current law, patrons smoking in violation of the law, and restaurants in violation of the law, are fined up to $25. The bill increases these fines to a maximum of $50 for persons smoking pipes or cigars in violation of the law and to a maximum of $100 for a first offense, $200 for a second offense, and $500 for a third or subsequent offense for restaurants not in compliance with the law. The owner, operator or manager of the restaurant would not be responsible for enforcement of the law beyond a verbal warning and request for compliance. Under the bill, the inability of the owner, operator or manager to obtain patron compliance would not be deemed a violation on the part of the restaurant.
Finally, the bill provides that the Assembly Judiciary, Law and Public Safety Committee and the Senate Law and Public Safety Committee would jointly monitor and evaluate implementation of this law. The Commissioner of Health would be required, at intervals of one, three, and five years from the effective date of the bill, to report to the joint committee with an evaluation of the law's effectiveness, and the joint committee may, upon receiving this report, issue recommendations for administrative or legislative changes.
Prohibits smoking pipes and cigars in dining areas of restaurants as of January 1, 1996.