SOM-L-001163-24 08/28/2024 11:42:50 AM Pg 1 of 6 Trans ID: LCV20242102002

SCHILLER, PITTENGER & GALVIN, P.C.

Jay B. Bohn – 042211988
1771 Front Street, Suite D
Scotch Plains, New Jersey 07076
(908) 490-0444
Attorney for plaintiff R.D.S. Smokers Delight Inc.

R.D.S. SMOKERS DELIGHT INC., SUPERIOR COURT OF NEW JERSEY

LAW DIVISION | SOMERSET COUNTY
Plaintiff,
Docket No.
v.
Civil Action
TOWNSHIP OF BRIDGEWATER, a In Lieu of Prerogative Writs
municipal corporation of the State of New
Jersey, and KEVIN SUMNER, in his official Complaint
capacity as the Health Officer of the Township
of Bridgewater,

Defendants.

Plaintiff R.D.S. Smokers Delight Inc., having an address of 1053 Stuyvesant Avenue, Union NJ

07083, says by way of complaint as follows:

BACKGROUND ALLEGATIONS

1. Plaintiff is the tenant of a portion of real property designated as Block 708, Lot 21,

on the tax map of the Township of Bridgewater, located at 1962 Washington Valley Road (the

“property”).

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2. Defendant Township of Bridgewater (the “Township” or “Bridgwater”) is a

municipal corporation of the State of New Jersey, exercising certain governmental authority over

the property in accordance with law.

3. Defendant Kevin Sumner is the Health Officer of the Township of Bridgewater

(“Health Officer”) and as such is the designated agent of the Township for the enforcement of

certain laws and regulations relating to public health.

4. Plaintiff rented the property from its owner in order to operate a retail store with a

designated smoking area, for the sale and testing of premium cigars and pipe tobacco and related

accessories (the “Store”). No cigarettes, vapor products, or cannabis would be present.

5. Plaintiff proposes to call the business “Pals Premium Cigar & Pipe Lounge.”

6. Plaintiff has designed and completely built the Store and intends to operate it to

qualify as a “tobacco retail establishment” under the terms of the Smoke-Free Air Act of 2006,

L. 2005, c. 383, codified at N.J.S.A. 26:3D-55 et seq. (the “Act”).

7. The Act exempts from its prohibition a “tobacco retail establishment.”

8. N.J.S.A. 26:3D-57 defines a “tobacco retail establishment” as “an establishment in

which at least 51% of retail business is the sale of tobacco products and accessories, and in which

the sale of other products is merely incidental.” That exemption includes an area designated by the

store for smoking.

9. The Store will also qualify for the exemption articulated in N.J.S.A. 26:3D-59(c),

which is for “any tobacco business 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.” Plaintiff is and has been, and has operated as, an importer

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and distributor of cigars and pipe tobaccos for over 27 years; and intends to continue as such in

the Bridgewater address.

10. Because the Store will not have been in operation since 2004, it would not qualify

for exemption as a “cigar bar” or “cigar lounge.” Further, it does not meet the definition for either

exception as it will not sell and serve alcoholic beverages nor is it specifically designed for the

smoking of tobacco products purchased elsewhere. The Store is not located within a larger non-

smoking establishment or ancillary business.

11. Plaintiff envisions that many of its customers, employees and industry

professionals would test the product on the premises and wishes to provide a comfortable

environment for that activity, with chairs, tables, televisions, and a pool table.

12. Similar facilities have recently been opened in Millburn, Scotch Plains, Somerville,

and Sparta, just to name a few locations. Many others, dozens in fact, have opened since 2007.

13. Testing tobacco products always takes a considerable and significant amount of

time and when done properly, cannot be rushed.

14. Seating, tables, televisions all make sense when taking this into account as well as

efforts to keep people comfortable. Not providing this for customers, employees and industry

professionals would be very unusual and detrimental to the business. People will decide not to

visit/work because it is uncomfortable.

15. Plaintiff rented a large amount of extra square footage, rented and renovated the

space to accommodate the seating and pool table.

16. Plaintiff’s plans for the property were fully disclosed to the Township’s building

inspectors (the whole department and fire prevention staff knew), who, because cigars would be

smoked within the building, required the installation of an expensive ventilation system (per

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building code), and an expensive specialized fire alarm system, both requirements with which the

plaintiff complied.

17. Two of the Township’s health inspectors, Patricia Timko-Parker and Shahira

Morell, signed off on plaintiff’s food license prior to construction knowing that the Store was going

to have seating in a tobacco store.

18. If the Township had advised plaintiff that his proposed Store would not be

recognized as a tobacco retail establishment with seating permitted, plaintiff would not have rented

the space, or incurred the cost of renovating and furnishing the space or of the installation of the

exhaust and fire alarm systems.

19. The Township employees processing plaintiff’s applications for health licensing

and building permits never suggested that plaintiff could not use the property as it intended and as

was reflected on the plans submitted and approved.

20. During the course of plaintiff’s permitted work, the building inspector also required

that the furnishings shown on the floor plan of the Store, including seating, be unpacked,

assembled, and laid out in accordance with the approved floor plan before he would pass the final

construction (building, electrical, plumbing, and fire) inspections for the Store. Plaintiff complied

and final construction approvals were issued.

21. After plaintiff had complied with all of the building inspector’s requirements, the

building inspector refused to issue the certificate of occupancy required to open and operate the

Store based upon the direction of the Health Officer.

22. The Health Officer requires that the plaintiff make the following changes to its

plans for the operation of the Store, all without citation to any statute, regulation or official

guidance addressing furniture and fixtures:

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a) Removal of the pool table

b) Removal of all seating including the bar stools

c) Removal of the word “lounge” from the store name (as displayed)

23. The Health Officer has refused to meet with the plaintiff to discuss his demands or

to provide a written justification therefor.

24. The Act permits smoking in a tobacco retail establishment. So long as the tobacco

retail establishment satisfies the statutory requirement that at least 51% of the retail business be

the sale of tobacco products and accessories and the sale of other products be merely incidental,

the Act does not prohibit plaintiff’s proposed operation or limit the name under which plaintiff

may do business.

Wherefore, plaintiff demands judgment

a) declaring that plaintiff’s proposed operation does not violate the Smoke-Free Air Act of

2006;

b) declaring Defendants’ denial of permits and certificates necessary to operate plaintiff’s

store in the manner described herein to be illegal;

c) directing the issuance of such permits and certificates;

d) awarding plaintiff costs of suit and such other relief as may be just and equitable.

CERTIFICATIONS PURSUANT TO RULE 4:5-1

Pursuant to Rule 4:5-1, the undersigned attorney for plaintiff R.D.S. Smokers Delight Inc.,

hereby certifies that to the best of the undersigned’s information, knowledge and belief, the within

action is not presently the subject of any other action pending in any court or of a pending

arbitration proceeding to date, nor is any other action or arbitration proceeding contemplated at

this time.

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I certify that confidential personal identifiers have been redacted from documents now

submitted to the court and will be redacted from all documents submitted in the future in

accordance with Rule 1:38-7(b).

SCHILLER, PITTENGER & GALVIN, P.C.

Jay B. Bohn

DATED: August 28, 2024.