Posted on 05 November 2018 by Calvin

By JANE MCCLURE

A shuttered University Ave. convenience store can become a smoke shop, the St. Paul City Council has decided. But with more business owners seeking distance variances for tobacco shops, council members are also asking city staff from the Department of Safety and Inspections to clarify how the distance between shops is measured.

The Oct. 24 vote is a win for Mussie Embaye, who operated the Little Grocery, 1724 University Ave. before closing it several months ago. He plans to open his new tobacco shop there.

But it is a disappointment for the Association of Non-Smokers Minnesota, who appealed a September Board of Zoning Appeals (BZA) decision to grant the shop a distance variance. Neighbors, health and anti-tobacco groups sent letters in support of the appeal.

The BZA has acted on three similar variance requests in the past several weeks and has at least three other requests pending. As of Nov. 1, menthol tobacco products cannot be sold in convenience stores, grocery stores, gas stations and businesses that aren’t dedicated tobacco or “smoke” shops. The definition of products is broad and includes cigarettes, cigars, cigarillos, chewing tobacco and liquids used in electronic cigarettes.

The other wrinkle is that tobacco products shops are to be at least one-half mile apart. That regulation has been in place for several years. But the enabling ordinance isn’t clear on how that distance should be measured, a point council members, city staff and tobacco foes all raised. Jerome Benner II of the BZA staff said a clarification for the distance would be submitted for City Council action soon.

Ward Four Council Member Mitra Nelson, whose ward includes the tobacco shop, said she didn’t find that the BZA erred in granting the variance. The only way the City Council can overturn a variance is if an error is found.

Council members Dan Bostrom, Amy Brendmoen, Dai Thao, and Chris Tolbert agreed with Nelson. Rebecca Noecker and Jane Prince voted against denying the appeal, saying that they sided with the association and its arguments based on the distance issue.

Brendmoen indicated that the influx of new tobacco shop requests was something predicted when the city enacted the menthol restrictions. She noted that before the ban, there was no tobacco shop in her Fifth Ward.

That’s not the case now.

What council members hope will control tobacco sales is a cap of 242 licenses citywide for tobacco sales, which the council adopted last summer. Embaye told the council at an October public hearing that he has already obtained such a license, and could find another place to open if he was denied approval for the former grocery store site. But opening there allows him to retain his current lease.

1724 University Ave. is 2,600 feet from Vape Pros, 681 N. Snelling Ave. Vape Pros sells e-cigarettes and accessories. A variance of 40 feet was needed to allow for the new shop to open.

The anti-tobacco association, which has championed several city restrictions on tobacco products in recent years, has worked on restricting youth access to tobacco products. Menthol is seen as a gateway, or introduction, to tobacco use.

Jeanne Weigum of the anti-tobacco group said the variance requested by Embaye doesn’t meet all of the BZA’s required findings. One objection is that granting a variance is inconsistent with the city’s intent to have a minimum set distance between shops.

Weigum added that allowing a variance, and more shops, promotes tobacco use. Allowing the shop isn’t consistent with the city’s comprehensive plan, and will change the character of the area.

But Embaye said he should be granted the variance and that he had shown hardship. He told both the BZA and the council that selling tobacco products is the only option he has at this point. Many of his sales are of menthol products. By becoming a tobacco product shop, the University Ave. storefront can have more than 90 percent of its sales from tobacco products, including the sale of cigarettes, cigars, pipes, loose tobacco, plants, herbs, and smoking devices.

BZA staff recommended approval of the variance, citing the business’s location in a commercial district, the fact that Little Grocery has long sold tobacco products, and the distance requirement hardship.

Union Park District Council made no recommendation.