The New Jersey Smoke-Free Air Act Exemptions

The 2006 NJ Smokefree Air Act (“Act”) and 2007 Regulations promulgated by the NJ Department of Health and Senior Services to help implement the Act (“Regulations”) exempt only a few specific workplaces and public places, to allow smoking. Those that require a waiver (including a cigar bar and tobacco retail establishment) must meet specific requirements in order to receive a waiver from the local department of health. We suggest reviewing the definitions of a cigar bar and a tobacco retail business are in section 3 (C.26:3D-57) of the Act, along with the description of the Act’s exceptions in section 5 (C.26:3D-59) and section 6 (C.26:3D-60) of the Act, in combination with the relevant 2007 Regulations.

Below is a summary of the exceptions to allow smoking, in outline form, and the requirements for qualifying for a smoking exception with the type of smoking also qualified. Some requirements concern ventilation, revenues, registration, and location; other requirements concern activities that take place in the establishment. Here are the summarized specifications for each exception:

Tobacco Retail Establishment (TRE) exception requirements:

N.J.S.A. 26:3D-57 defines a ‘tobacco retail establishment‘ as ‘an establishment in which at least 51 percent of retail business is the sale of tobacco products and accessories, and in which the sale of other products is merely incidental.‘

To be granted a TRE waiver, certain requirements must be met:

Revenue and sale requirements:

• At least 51% of the TRE’s business must be the sale of “tobacco products” as defined by and taxed under the Tobacco Products Wholesale Sales and Use Tax Act, N.J.S.A. 54:40B-1 et seq., particularly N.J.S.A. 54:40B-2; (Gasp Comment: “Cigarettes and electronic smoking devices are not taxed under the NJ Tobacco Products Wholesale Sales and Use Tax Act, & therefore do not fall within that Act’s definition of tobacco products.”Thus, smoking waivers should not be granted to allow for the use of cigarettes or electronic smoking devices. and
• The sale of “other products” must be merely incidental. The 2007 Regulations NJAC 8:6-1.2b define  “Incidental” as “means minor and occasional. 1. The sale of food or beverages for on-site consumption is a not an incidental sale of other products.”See  N.J.A.C. 8:6-1.2b, May 2007 Regulations, pg. 83. If the TRE is engaging in the selling of these non-incidental products for on-site consumption, then the TRE waiver may not be granted.

Or the sale of food or beverages for onsite consumption is more than “minor and occasional” (offer menu, etc.)

Smoking only for pre-purchase sampling; TRE intent is for ‘cash and carry’ to use product off-premises:

• Smoking inside a TRE is only for pre-purchase sampling of a cigar or other expensive tobacco product, prior to making a multi-unit purchase.“…the Department believes it is reasonable to infer that the purpose of the exemption for tobacco retail establishments was to permit retail consumers to sample cigars, which can be costly, exotic, and/or luxury items, prior to making larger purchases of multiple units.” 
  May 2007 Regulations, Response to Comments #106/107, pg. 75.
• A TRE is a ‘cash and carry’ business, like other retailers, with the general purpose of purchasing product for off-premise consumption. Seating, chairs, tvs, food/beverage menus and signage that condones continued smoking beyond pre-purchase sampling may be construed as evidence that more than pre-purchase sampling is encouraged and permitted, which may be deemed beyond the scope and intent of the TRE waiver. “If a tobacco retail establishment were to determine not to claim the exemption, it would not preclude the establishment from continuing to operate and sell merchandise. It would only preclude customers from consuming on-site the retail merchandise they purchase. “This may impede prepurchase sampling of products, but would otherwise be consistent with the notion of retail stores being locations for “cash and carry” sales of goods directly to the ultimate consumers for consumption elsewhere.” 
  October 2007 Regulations, Response to Comment #1, pg. 4.

Application form:

• Form to claim an exemption for a tobacco retail establishment

Cigar bar and cigar lounge exemption requirements

Ventilation requirements:

If a cigar bar is within a bar, or a cigar lounge is within another 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. (The Act)

Revenue, registration and sale requirements:

The cigar bar or cigar lounge shall with regards to revenue and registration:

• 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.). (The Act) (Gasp Comment: “Cigarettes and electronic smoking devices are not taxed under the NJ Tobacco Products Wholesale Sales and Use Tax Act, & therefore do not fall within that Act’s definition of tobacco products.”Thus, smoking waivers should not be granted to allow for the use of cigarettes or electronic smoking devices.

Food service must be incidental to the sale/consumption of alcoholic beverages:

• Onsite food service can only be “incidental” to the sale or consumption of alcohol.,  The 2006 Act defines a “bar” as only able to serve food if food service is only “incidental” to the sale or consumption of alcohol.  The definition of a “cigar bar” in the 2006 Act is defined to mean “any bar” with additional other qualifiers. Since a cigar bar is defined as a type of bar, it follows that a cigar bar cannot have onsite food service that is more than “incidental” (“minor or occasional”) to the sale or consumption of alcohol.  The 2007 Regulations NJAC 8:6-1.2b define “incidental” as “minor and occasional”.  If the serving of food is more than “incidental” (“minor and occasional”) e.g. perhaps regular food menus, etc., then the health department may not approve or renew the cigar bar’s smoking waiver.

Requirements for a Cigar bar within a bar:

• Based upon the Act’s definition of a “cigar bar” as meaning a “bar, or area within a bar,” a cigar bar can co-exist within a larger establishment only if the larger establishment is a bar, and subject to the following conditions: the cigar bar within a bar meets the structural and ventilation requirements established in the definition of “cigar bar” at N.J.S.A. 26:3D-57, and the larger bar establishment conforms to the definition of a “bar” at N.J.S.A. 26:3D-57, including the requirement that the bar “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.” See 2007 Regulations, Response to Comment #101, pg. 71)  “Incidental” means minor and occasional. 1. The sale of food or beverages for on-site consumption is a not an incidental sale of other products. N.J.A.C. 8:6-1.2b, May 2007 Regulations, pg. 83. 

Location requirement:

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

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

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. (The Act)

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. However, the Act requires that apartment building lobbies and other public areas in an otherwise private building be smokefree, according to the Act’s definition of an “indoor public place”. Learn more about how the Act applies to multi-unit housing.