Evidence of Smoking

An eyewitness to smoking, or an indicia of smoking such as full or empty ashtrays and ashes, may be grounds to initiate enforcement proceedings. The NJ Department of Health’s (NJDOH) 2007 Regulations to help implement the 2006 Act, attach numerous public comments along with the NJDOH’s responses to such comments that relate to their 2007 Regulations. In addition to eyewitness reports of smoking taking place where smoking is prohibited, indicia of smoking can be grounds to initiate enforcement proceedings. See the NJDOH’s response to comments 111 and 112, the NJDOH gave examples of indicia of smoking, such as full or empty ashtrays, ashes, etc., that could be grounds for the initiation of enforcement proceedings. See page 77 of the 2007 NJDOH Regulations:

“NJDOH RESPONSE TO COMMENTS 111 AND 112 states: The Department is unaware of the discussions to which the commenter refers. With respect to enforcement against individual smokers, the Act provides that “a person, after being … ordered [to comply with the Act], who smokes in violation of [the Act] is subject to a fine …” With respect to establishments subject to the Act, the enforcing entity is authorized to order establishments to comply with the Act “upon written complaint or having reason to suspect that [the establishment] is or may be in violation of [the Act].” Thereupon, the establishment’s failure or refusal to complaint or having reason to suspect that [the establishment] is or may be in violation of [the Act].” Thereupon, the establishment’s failure or refusal to comply with the Act and the order to comply can result in the imposition of monetary sanction and injunctive relief.

The Department does not believe that the Act or the proposed new rules would subject individuals or establishments subject to the Act to enforcement only “when actual smoking is observed.” Indicia of the occurrence or tolerance of smoking in places where smoking is prohibited, such as the presence and location of ashtrays (full or empty) or ashes, could be grounds for the initiation of enforcement proceedings.”