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The New Jersey Smoke-Free Air Act - Exemptions

The New Jersey Smoke-Free Air Act includes a few exemptions for certain workplaces and public places, but these excepted workplaces must meet specific requirements, according to the Act. The law in its entirety, including the exemption requirements, is available on the state website and can be viewed by clicking here. The definitions of the cigar bar and tobacco retail business are in section 3 (C.26:3D-57) of the Act. The description of the the exemptions are in section 5 (C.26:3D-59) and section 6 (C.26:3D-60) of the Act.

Below is a summary of the exemptions, in outline form, and the requirements for qualifying for an exemption. Some requirements concern ventilation, revenues, registration, and location; while others concern activities that take place in the establishment. Here are the summarized specifications for each exemption:

Cigar bar and cigar lounge exemption requirements

Ventilation requirements:

If a cigar bar is within a bar, or a cigar lounge is within an other establishment, then that cigar bar or cigar lounge shall be an area that is:

• 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 backstreamed into the nonsmoking areas.

Revenue and registration requirements:

The cigar bar or cigar lounge shall:

• as of the calendar year ending December 31, 2004, have generated 15% or more of its total annual gross income from the on-site sale of tobacco products (excluding cigarettes, see note) and the rental of on-site humidors, not including any sales from vending machines, and
• register with the local board of health in the municipality in which the bar or lounge is located, with registration in effect for one year, and renewable only if:
  1. in the preceding calendar year, the cigar bar or lounge generated 15% or more if its total annual gross income from the on-site sale of tobacco products (excluding cigarettes, see note) 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.

Note: "Tobacco product" does not include cigarettes, as defined in section 102 of the "Cigarette Tax Act," P.L. 1948, c.65 (C.54:40A-1 et seq.).

Location requirement:

• The cigar bar or cigar lounge has not expanded its size or changed its location since December 31, 2004.

Note: cigar merchandise smoked on the site may be purchased on the premises of the cigar bar or cigar lounge, or elsewhere.

Application forms:

• Application for registration of exempt cigar bar or cigar lounge
• Application for renewal of registration of exempt cigar bar or cigar lounge
  

Tobacco retail establishment (TRE) exemption requirements:

Revenue requirements:

• At least 51% of the TRE's business must be the sale of tobacco products (excluding cigarettes, see note) and accessories, and
• The sale of other products must be merely incidental. If more than incidental sales of products is taking place, then a TRE cannot qualify for the waiver. For instance, daily sales of coffee, tea, desserts, etc. are NOT incidental sales. According to N.J.A.C. 8:6-1.2b (May 21, 2007 regulations adopted by the NJ Department of Health and Senior Services), "Incidental" means minor and occasional. The sale of food or beverages for on-site consumption is a not an incidental sale of other products.

Note: "Tobacco product" does not include cigarettes, as defined in section 102 of the "Cigarette Tax Act," P.L. 1948, c.65 (C.54:40A-1 et seq.).

For sampling cigar products only; for ‘cash and carry’ to be used off-premises:

• Smoking inside a TRE is only to sample a cigar or other expensive tobacco product, prior to making a multi-unit purchase. See response to comment #1 in October 15, 2007 regulations adopted by the NJ Department of Health and Senior Services.
• A TRE is a ‘cash and carry’ business, like other retailers, with the general purpose of purchasing product for off-premise consumption. See response to comments #106/107 in the May 21, 2007 regulations adopted by the NJ Department of Health and Senior Services.

Ventilation and Location Requirements

The 2006 NJ Smokefree Air Act does not have ventilation or location requirements for a "tobacco retail establishment" specifically noted in the exemptions section, but general restrictions on migrating secondhand smoke emanating from a TRE apply. The 2007 Department of Health and Senior Services regulations describe registration requirements.

Application form:

• Form to claim an exemption for a tobacco retail establishment

Cigar and pipe tobacco business exemption requirement:

Activities requirement:

• The provisions of the Act shall not apply 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.

Note: there are no ventilation, registration, or location requirements for a tobacco business in the Smoke-Free Air Act.

Casino gaming floor exemption requirement:

Activities requirement:

• The casino must contain at least 150 stand-alone slot machines, 10 table games, or some combination of the two, approved by the Casino Control Commission, and available to the public for wagering.

Note: There are no ventilation requirements for a casino gaming floor in the Smoke-Free Air Act. The Act does not ban bars or restaurants on the gaming floors; New Jersey's regulations on gaming and casinos may have their own rules on this topic.

Casino simulcasting facility exemption requirement:

Activities requirement:

• The casino simulcasting facility must contain a simulcast counter and dedicated seating for at least 50 simulcast patrons, or a simulcast operation and at least 10 table games, that are available to the public for wagering.

Note: There are no ventilation requirements for a simulcasting facility in the Smoke-Free Air Act.

Hotel, motel, and lodging establishment guest rooms exemption requirement:

• A hotel or motel may permit smoking in up to 20% of its guest rooms.

Note: The Act says the person in control "may", rather than "shall", permit smoking in up to 20% of its guest rooms. This means that a hotel may designate fewer than 20% of its guest rooms as smoking, or declare it has 100% smokefree guest rooms.

Private homes, private residences, and automobiles exemption requirement:

• The Act does not specify any requirements that must be met to qualify for exemption.

Please note: The information presented on this website is not intended as, nor to be construed or used as legal advice, and should not be used to replace the advice of your own legal counsel for the specific circumstances of your matter.

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updated January 29, 2010