C.I.C. CORPORATION, ET AL. V. TOWNSHIP OF EAST BRUNSWICK

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

C.I.C. CORPORATION, ET AL. V. TOWNSHIP OF EAST BRUNSWICK (A-109-93)
 

Argued March 15, 1993 -- Decided March 31, 1994

(NOTE: The Court wrote no full opinion this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Erminie Conley's written opinion below.)

PER CURIAM

In July of 1990, the Township of East Brunswick enacted an ordinance (Ordinance 90-32) banning cigarette vending machines in East Brunswick. The decision to implement the ordinance was a result of the Township Council's concern for the health of its minor residents affected by early smoking and its evaluation of information showing that many young people readily obtain cigarettes through vending machines, notwithstanding the illegality of those sales. The ordinance was enacted in the context of a growing national concern over ready access of minors to cigarettes, particularly through vending machines, and studies showing lax enforcement of laws making it illegal to sell cigarettes to minors.

C.I.C. Corporation, Eskin Vending Corporation, and Amusement Music Operators Association (plaintiffs) are owners and operators of cigarette vending machines. They challenge the legality of the ordinance on the grounds of State preemption and equal protection.

When East Brunswick proposed the cigarette vending machine ban, it received information from numerous sources. Those sources provided that: 1) 22" of thirteen year olds surveyed who smoked regularly indicated that vending machines were usually their source of cigarettes; 2) results from surveys performed at New Jersey high schools indicated that two-thirds of all students used vending machines to obtain cigarettes; and 3) teenage smoking "is a gateway to other drug use." In addition, the Township Council considered information from representatives of plaintiffs raising questions concerning the accuracy of the studies and surveys. The plaintiffs also presented alternatives to a total ban on vending machines, including the use of a "remote control device" on the vending machine that could be unlocked only by the owner or an employee activating a remote control release mechanism. The plaintiffs also suggested that constant supervision could be required to prevent minors from using the machines as well as the placement of vending machines in areas not ordinarily accessible to minors. The Township Council rejected the alternative proposals in favor of a total ban.

In addressing the validity of the ordinance, the trial court concluded that while a rational basis existed for the ban, the ordinance was preempted by State law, including the Cigarette Tax Act and the Unfair Cigarette Sales Act.

On appeal, the Appellate Division reversed the decision of the trial court, finding the ordinance valid. The court reasoned that the East Brunswick Township Council had the power to enact the ordinance; that the Township Council's powers to promote good government and the safety and welfare of its citizens are powers which are liberally construed; and that the protection of minors within the borders of East Brunswick from the perceived dangers of early smoking and illegal sale of cigarettes affect matters of local concern.

On the issue of preemption, the Appellate Division found that the State laws relied on by the trial judge were not an expression of comprehensive or exhaustive regulation on the use of vending machines. The Cigarette Tax Act and the Unfair Cigarette Sales Act together disclose a legislative intent to address a state-wide problem, to protect the public from smuggling and deceptive trade practices, to regulate by licensing those who distribute

and sell cigarettes, and to impose a tax. The fact that the State has created a broad licensing and tax scheme through the Cigarette Tax Act and the Unfair Cigarette Sales Act for cigarette sellers and distributors does not prevent municipalities from regulating the effects of the conduct resulting from those licenses in order to protect the health and welfare of its residents.

The Appellate Division also noted that the plaintiffs' concern over the loss of tax revenue to the State as a result of the ban on cigarette vending machines is speculative. The court also found significant a recent attempt by the Legislature to enact an Assembly Bill seeking to implement a state-wide ban on unattended cigarette vending machines in certain locations, such as train stations and boardwalks and to require remote control locking devices on machines elsewhere. The Appellate Division concluded that that bill, which was vetoed, indicated an awareness that the field has not yet been preempted.

On the issue of equal protection, the Appellate Division held that the prohibition on cigarette vending machines does not involve the suspect class or fundamental right and that the ordinance need only be rationally related to a legitimate governmental interest to satisfy equal protection and substantive due process concerns. The court found that, although plaintiffs asserted a less restrictive means of preventing unrestricted access to vending machines, a total ban is not irrational. The Township Council's determination that only a total ban would be effective in the effort to reduce access by minors to cigarettes is within its legislative prerogative.

The Supreme Court granted certification.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed by Judge Conley in her opinion below. The East Brunswick Municipal Ordinance 90-36 creating a total ban on cigarette vending machines in the Township is neither preempted by State law, nor does it violate equal protection or due process concerns.

JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion. CHIEF JUSTICE WILENTZ did not participate.

SUPREME COURT OF NEW JERSEY
A- 109 September Term 1993

C.I.C. CORPORATION, A NEW JERSEY
CORPORATION, COAST CIGARETTE SALES,
INC., A NEW JERSEY CORPORATION,
ESKIN VENDING CORPORATION, A NEW
JERSEY CORPORATION, AND AMUSEMENT
MUSIC OPERATORS ASSOCIATION,

Plaintiffs-Appellants,

v.

TOWNSHIP OF EAST BRUNSWICK,

Defendant-Respondent.

Argued March 15, 1994 -- Decided March 31, 1994

On certification to the Superior Court, Appellate Division, whose opinion is reported at 266 N.J. Super. 1 (1993).

Keith N. Biebelberg argued the cause for appellants (Biebelberg & Martin, attorneys; Mr. Biebelberg and Barry D. Maurer, on the briefs).

Bertram E. Busch argued the cause for respondent (Busch and Busch, attorneys; Mr. Busch and Kenneth A. Levine, of counsel and on the brief).

John M. Loalbo submitted a letter in lieu of brief on behalf of amici curiae Action on Smoking and Health and Group Against Smoking Pollution.

John G. Gilfillan submitted a brief on behalf of amicus curiae Tri-Agency Council (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein, attorneys).

PER CURIAM

The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 266 N.J. Super. 1 (1993).

Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion. Chief Justice Wilentz did not participate.