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The power to regulate indoor smoking lies with the legislature, not local government, a Mercer County, N.J., judge said in a resounding rejection of Princeton’s anti-smoking ordinance. Ruling in a suit by the National Smokers Alliance and three restaurants, Judge Linda Feinberg said Princeton, N.J., did not have the authority to pass its ordinance banning smoking in most public spaces other than private homes. The Princeton Regional Health Commission had adopted the ordinance in June. Soon after, the plaintiffs sued. In LDM Inc. v. Princeton Regional Health Commission, Feinberg found that a range of state laws provide a comprehensive guide on smoking indoors. The main statute is N.J.S.A. 26:3D, which declares: “It is not the policy of this State to deny anyone the right to smoke.” Instead, the statute controls smoking in certain areas, such as public elevators, certain parts of health-care facilities, educational institutions and retail food establishments. Another statute, N.J.S.A. 26:3E-7, declares that “it is in the interest of the public health to encourage restaurants to establish nonsmoking areas.” To determine whether the local ordinance was pre-empted by state law, Feinberg applied the test established in Overlook Terrace Management Corp. v. Rent Control Board of West New York, 71 N.J. 451 (1976). The test is composed of these questions: Does the ordinance forbid what the legislature has permitted or vice versa; was the state law intended to be exclusive in the field? Does the subject matter reflect a need for uniformity? Is the state scheme so comprehensive that it precludes coexistence with municipal regulation? Does the ordinance stand as an obstacle to the legislature’s objectives? In each case, Feinberg found the local law was pre-empted by state law. She also rejected Princeton’s reliance on another case, which affirmed a municipal ban on cigarette vending machines. Feinberg found that East Brunswick’s intent did not usurp the state’s regulation of the field. The town wanted to prevent access by minors to cigarettes, while the state wanted to ensure that the proper taxes were collected. But in Princeton, the intent to regulate indoor smoking is similar to that in the state law, to regulate smoking in public places, Feinberg found. Feinberg also cut down Princeton’s claim that its ordinance was needed for fire safety reasons. She said the ordinance makes no distinction between buildings with sprinkler systems and those without. Feinberg also noted that the ordinance exempts private residences. “The court finds that the mere invocation of the term ‘fire safety’ does not transform a broad-ranging smoking ban based on public health concerns into a fire safety ordinance designed and implemented in all its particulars based on fire safety concerns,” Feinberg wrote. The Princeton Regional Health Commission, represented by Michael Herbert and Karen Cayci of the Princeton firm of Herbert, Van Ness, Cayci and Goodell, also had claimed that the Virginia-based National Smokers Alliance did not have standing to be a party in the case. But Feinberg rejected that argument as well. She cited 20 letters from alliance members living in the Princeton area who said they would be adversely impacted by the ordinance in granting the group representational status. Cayci says the borough has not decided whether to appeal because several health commission members were on vacation last week. She says the commission would have to decide among three options: an appeal; asking the legislature to change the law; or re-writing the ordinance to incorporate Feinberg’s comments on the validity of the fire safety argument. “We’re disappointed. I think at the oral argument we had a good sense of how she [Feinberg] was going to rule, so we can’t say the decision was a surprise,” says Cayci. Ross Lewin, the attorney for the plaintiffs, says the ruling affirms the state’s “balanced” laws on smoking, noting that state law bans smoking in elevators, health-care facilities and schools. “Princeton’s commission didn’t like the law, even though it was a law enforcement agency,” Lewin says of the ruling. “Rather than seek to change the law, they tried to evade the law.” Lewin, a partner with Princeton’s Jamieson, Moore, Peskin & Spicer, says the ruling means other municipalities around the state that have passed ordinances regulating smoking in certain places should take heed and revise their laws. Robert Conroy, who submitted an amicus brief on behalf of the anti-smoking group New Jersey Breathes, says the ruling will increase pressure on the legislature to take action on indoor smoking. The legislature could enact statewide regulations banning indoor smoking or could pass a law allowing local towns to pass their own ordinances on the matter, says Conroy, a partner at Bridgewater, N.J.’s Kern Augustine Conroy & Schoppmann. “New Jersey has a long history of home rule and local tailoring of regulations,” says Conroy. “We wouldn’t have a problem if the legislature were to free the hands of local municipalities.”

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