Recently, a number of municipalities in New York have enacted local zoning laws restricting the locations where e-cigarettes and other vaping products may be sold. Although the rationale for these laws varies somewhat among the municipal agencies that have adopted them, a common thread appears to be the health and safety concerns associated with vaping, and in particular, the prevalence of vaping among teenagers. Unsurprisingly, several of these laws confine vaping uses to districts that are removed from downtown centers and, presumably, less accessible to young consumers. But the trend now has some businesses fighting back.

The Town of Bedford, in Westchester County, is currently defending a lawsuit filed by a consortium of gas station owners and operators over their ability to sell vaping products as part of their retail operations. The action, titled Bedford Village Service Station of Westchester Inc., et al. v. Town of Bedford, is pending in State Supreme Court, under Index No. 70064/2018.

On May 7, 2018, the Town adopted Local Law 5-2018, which enacted Section 125-29.8 of the Town Code governing “Electronic Nicotine Delivery Systems.” The law states that “vape shops” – which is defined broadly to include any business selling electronic nicotine delivery systems as a primary or ancillary use – shall be restricted to the Roadside Business District only. The law goes on to state that the sale of electronic nicotine delivery systems in the Town outside the RB District shall be unlawful.

In July of 2018, the Town began notifying businesses outside the RB District that they were required to end the sale of electronic nicotine delivery systems within six months, or face prosecution under the Town Code. In response, the plaintiffs, all of which had received notices, commenced an action seeking a declaration that the Town’s law is invalid and unenforceable on the grounds that it exceeds the Town’s zoning authority under State law. Plaintiffs argue, specifically, that the Town is not seeking to regulate the plaintiffs’ use of land and the impacts associated with those uses, but rather, is seeking to combat the perceived social evil of “youth vaping.”

Contemporaneous with commencing their action, the plaintiffs made a motion asking the Court to temporarily restrain the Town from enforcing the new law pending the outcome of the litigation. On May 1, 2019, the Court granted the plaintiffs’ motion finding, among other things, that they had demonstrated a likelihood or probability of success on the merits. The Court opined,

The legislative findings demonstrate the ordinance was enacted not to address the use of the land, but to address the general health issue of youth vaping. [However], the record is devoid of evidence demonstrating that the rise in youth vaping is caused by, or is correlated with, the nature of plaintiffs’ land such that it would be relevant to zoning. Bedford Vill. Serv. Station of Westchester Inc., et al. v. Town of Bedford, Sup Ct, Westchester County, May 1, 2019, Lefkowitz, J., Index No. 70064/2018, Decision & Order at p. 5, 6.

The Court’s finding on this point could be an indicator of how the action will play out, if it is litigated to a conclusion. The suit is still in its early stages.

On Long Island, the Town of Islip is facing an analogous lawsuit filed by a vape shop currently operating in the heart of Sayville village. In May of 2016, Islip amended Section 68-341.1 of the Town’s zoning code to add “vape shops” and “vape lounges” to the list of uses restricted to the Town’s Industrial 1 zoning district. The list, which includes “adult bookstores”, “adult drive-in theaters”, “adult entertainment cabarets,” “adult motels”, “message establishments”, and “peep shows”, is intended to contain the spread of uses which the Town has identified as having “objectionable characteristics” and “contribut[ing] to the blighting or downgrading of the surrounding neighborhoods or land uses”. Town of Islip, Code § 68-341.1(A) (1997). This rationale, as stated in the law, is known as the “secondary effects doctrine”, which has been used to justify the restrictive zoning regulations placed on “adult” uses over the last several decades.

Following the enactment of the amended zoning, the Town directed the owner of Blackwater Vapor to relocate his business within one year and 99 days, or face prosecution for violating the Town’s zoning ordinance. The owner appealed to the Town’s Zoning Board of Appeals seeking an exemption from the law on the grounds that his shop is a pre-existing use that was lawfully open and operating prior to the zoning amendment. The Zoning Board denied the appeal. In response, the owner of the shop has filed an Article 78 Proceeding (an expedited form of litigation) challenging the Zoning Board’s decision. 10-14 Main Street LLC v. Lorenzo, et al., Sup Ct, Suffolk County, Index No. 0001474/2019. As of July 5, 2019, no decision had been issue.

We will continue to monitor the progress of these disputes as they unfold. To review the local laws mentioned in this post, they can be found at https://www.generalcode.com/resources/ecode360-library/#NY, search “Bedford” and “Islip”, respectively.

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