SENATE, No. 880
STATE OF NEW JERSEY
INTRODUCED MARCH 7, 1996
By Senator ADLER
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 1 of P.L.1985, c.185 (C.26:3E-7) is amended to read as follows:
1. The Legislature finds and declares that the resolution of the conflict between the [right] interest of the smoker [to smoke] and the [right] interest of the nonsmoker to breathe clean air involves a determination of when and where, rather than whether, a smoker may legally smoke. It is not the public policy of this State to deny [anyone] adults the [right] opportunity to smoke in appropriate locations. In addition to the deleterious effects upon smokers, tobacco smoke is not only (1) [at least] an annoyance and a nuisance to a substantial percentage of the nonsmoking public, [and] but also (2) a substantial health hazard to [a smaller segment of] the nonsmoking public. Therefore, the Legislature finds that it is in the interest of the public health to [encourage] initially require restaurants to establish nonsmoking areas and to progressively limit smoking areas until all smoking is prohibited on the premises.
(cf: P.L.1985, c.185, s.1)
2. 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"]"Tavern" means [an establishment or portion of a restaurant, including any contiguous lounge or common area in which the principal business is the sale of alcoholic beverages for consumption on the premises of such establishment or in such portion of a restaurant] any indoor area open to the public that is primarily devoted to the sale and service of alcoholic beverages for on-premises consumption and where the service of food, if any, is incidental to the consumption of the beverages. Service of food shall be considered incidental if the food service generates less than 40% of the total annual gross sales for that area. The term "bar counter," when it refers to an area within a tavern or restaurant, shall not include the dining area of an establishment, even when the dining area is directly adjacent to or surrounds the bar counter.
b. "Restaurant" means [an establishment] any indoor area open to the public in which the principal business is the sale of food for consumption on the premises and includes but is not limited to a restaurant, cafeteria, luncheonette, soda fountain, coffee shop, diner, sandwich shop or short order cafe. The term shall not include a mobile food establishment or any temporary food establishment which 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 a tavern.
c. "Smoking" means the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.
(cf: P.L. 1985, c.185, s.2)
3. Section 3 of P.L.1985, c.185 (C.26:3E-9) is amended to read as follows:
3. a. The provisions of this act shall apply to all restaurants but shall not apply to any [bar] tavern. A restaurant [which provides a] with or without a contiguous bar counter that has an indoor seating capacity of 40 or more persons, excluding any bar counter seating, shall provide [a] one or more nonsmoking [section] sections which shall contain at least 60% of its seating capacity, excluding its bar counter seating, no later than one year after the effective date of P.L. , c. (pending before the Legislature as this bill), and at least 80% of its seating capacity, excluding any bar counter seating, no later than two years after the effective date of P.L. , c. (pending before the Legislature as this bill). Smoking shall be prohibited, except as provided in this section, in all restaurants, without regard to seating capacity, no later than three years after the effective date of P.L. , c. (pending before the Legislature as this bill). Prior to the prohibition of restaurant smoking, such a restaurant 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 with an indoor seating capacity of fewer than 40 persons, excluding bar counter seating, which lawfully [does] chooses not to provide a nonsmoking section prior to the prohibition of restaurant smoking 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] The provisions of P.L. , c. (pending before the Legislature as this bill) shall not apply to any enclosed portion of a restaurant while it is being used for a privately sponsored social affair or which is outdoors.
b. A restaurant with an indoor seating capacity of fewer than 40 persons, excluding bar counter seating, which chooses to provide a nonsmoking section prior to the prohibition on restaurant smoking shall post a sign no smaller than eight inches by five inches at or near, and readily visible from, each public entrance stating: "This establishment offers a nonsmoking area." The size and location of a nonsmoking area in a restaurant of this size shall be determined by the owner or manager or person in charge in accordance with patron needs.
c. A restaurant which chooses to prohibit smoking throughout its seating area prior to the prohibition of restaurant smoking shall post a sign no smaller than eight inches by five inches at or near, and readily visible from, each public entrance stating: "This restaurant does not permit smoking."
d. No later than three years after the effective date of P.L. , c. (pending before the Legislature as this bill), a restaurant shall post a sign no smaller than eight inches by five inches at or near, and readily visible from, each public entrance stating: "Smoking is not permitted in restaurants under State law."
e. A restaurant which has not prohibited smoking prior to the prohibition of restaurant smoking shall keep on its premises and have available for inspection a written certification of seating capacity. The certification shall include the name and address of the establishment and the name of the principal owner or owners, or a corporate officer or any other responsible authorized party. The certification shall be amended as necessary within 10 days after any change in seating capacity.
f. Prior to the prohibition of restaurant smoking, a restaurant with a nonsmoking area shall give each patron, prior to being seated, an opportunity to state his preference to be seated in a smoking or nonsmoking area. The owner or operator of the restaurant shall be responsible for making a good faith effort to ensure that employees responsible for seating arrangements comply with this subsection and with subsection g. of this section.
g. Prior to the prohibition of restaurant smoking, the owner or operator of a restaurant shall post conspicuous indoor signs advising patrons where smoking is permitted and prohibited.
h. Employees of a restaurant shall be prohibited from smoking in any nonsmoking area of the restaurant.
(cf: P.L.1985, c.185, s.3)
4. 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 subject to greater restrictions [prohibited] by municipal ordinance prior to the date of the restaurant smoking prohibition, 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.
(cf: P.L.1985, c.185, s.4)
5. Section 5 of P.L.1985, c.185 (C.26:3E-11) is amended to read as follows:
5. a. Any municipal or county health official or other public servant engaged in executing or enforcing this act, including a municipal law enforcement officer, trained in the enforcement of this act by the local board of health notwithstanding the provisions of chapter 3 of Title 26 of the Revised Statutes, and acting upon a verbal or written complaint by a restaurant or patron, shall order any person smoking in violation of this act to comply with the provisions of this act. Thereupon any such person who smokes in a restaurant in violation of this act is subject to a fine not to exceed[$25.00] $50. The owner, 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 nonsmoking areas and any person smoking in any area of the restaurant more than three years after the effective date of P.L. , c. (now pending before the Legislature as this bill), that he may be in violation of the law and to please cease smoking or relocate to a smoking area, if it exists.
b. The State Department of Health or the local board of health or any board, body or officers 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, manager or person in charge of the restaurant accordingly and order appropriate action to be taken. A local health agency shall, during the course of sanitary inspections, monitor compliance with this act and by written notification advise the owner, manager or person in charge of any violation and order appropriate action to be taken. [Thereupon any person] Any restaurant receiving [such] a notice [who] which 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, manager or person in charge 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 municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of any provision of this act, 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. An appeal of any municipal action to enforce this act shall be submitted to the commissioner within 30 days after any decision or order.
(cf: P.L.1985, c.185, s.5)
6. Section 6 of P.L.1985, c.185 (C.26:3E-12) is amended to read as follows:
6. No owner, manager or person in charge of the 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, manager or person in charge of the restaurant or any agent thereof for failure to meet the provisions of [this act] P.L.1985, c.185 (C.26:3E-7 et seq.). Nothing herein shall be construed to restrict a local board of health or a specially trained municipal law enforcement officer from enforcing subsection a. or b. of section 5 of P.L.1985, c.185 (C.26:3E-11).
(cf: P.L.1985, c.185, s.6)
7. Section 7 of P.L.1985, c.185 (C.26:3E-13) is amended to read as follows:
7. The Judiciary Committee of the General Assembly, and the 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. The Commissioner of Health of the State of New Jersey shall, one, three, and five years from the effective date of this act, 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.
(cf: P.L.1985, c.185, s.7)
8. This act shall take effect on the first day of the seventh month after enactment.
STATEMENT
In response to mounting evidence of the dangers of cigarettes to smokers and to those around them, this bill would phase out smoking in restaurants within three years. Recent research has produced medical evidence that secondhand smoke damages the lungs of non-smokers. Although a 1991 Gallup Poll indicated a large majority of respondents either preferred separate smoking areas or a total ban on smoking when they dine out, restaurants in New Jersey are not presently required to offer patrons a non-smoking section.
The bill requires that 60% of the seating capacity of a restaurant seating 40 or more persons be set aside for nonsmokers within a year of the bill's effective date. Eighty percent of such seating must be set aside for nonsmokers in these establishments within two years. By the end of the third year, no smoking would be permitted in any restaurant, regardless of seating capacity. Taverns are excluded from the bill as are restaurant premises used for privately sponsored social affairs or premises which are outdoors. A tavern is defined by the bill as an indoor area primarily devoted to the on-premises sale and service of alcoholic beverages where the service of food generates less than 40% of its annual gross sales.
During and after the phaseout period, restaurants would be required to post signs advising patrons of the applicable smoking policy.
A local health agency would be required, during the course of sanitary inspections, to monitor compliance with the posting and other requirements of the law and provide written notice to restaurants of any violation. Local health department and specially trained law enforcement personnel could cite violations as well. The fines for violations by patrons under the law are increased from $25 to $50. Local authorities could fine a patron for unlawful smoking only after being contacted by the restaurant or one of its patrons. Violations by restaurants would result in fines of $100 for a first offense, $200 for a second offense and $500 for a third or subsequent offense.
Requires restaurants to phase out smoking.