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:

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

Application form:

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:

Revenue, registration and sale requirements:

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

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)

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

If onsite food service is more than incidental, that practice may be deemed beyond the scope of the intent of the cigar bar waiver, and the TRE waiver may not be granted. "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." (2007 Regulations, Response to Comment #101, pg. 71

Location requirement:

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

Application forms:

Cigar and pipe tobacco business exemption requirement:

Activities requirement:

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:

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:

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:

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:

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Last update: 4/8/14