In what many consider to be a victory for personal liberty and limited government, a Washington County Circuit Court Judge has declared Washington County's ban on flavored vaping products to be "preempted by state law and therefore unenforceable." the case was brought by Jordan Schwartz and Jonathan Moran owners of Serenity Vapors, Torched Illusions, Belal Yahya owner of King's Hookah Lounge -- all of which "invested substantial time and resources into growing their respective businesses," according to the complaint.

During the 2021 Session, the Legislature passed SB 587 which, among other things, allows a local public health authority -- usually a county -- to enforce local standards for regulation of sale of tobacco products and inhalant delivery systems or enforce state standards for the regulation of sale of tobacco products and inhalant delivery systems. This legislation became effective on September 25, 2021.

Washington County rushed to enact Ordinance 878 which said that "No person shall sell, offer for sale, or otherwise distribute any flavored tobacco product or flavored synthetic nicotine product." Despite not being effective until September, the County held its first hearing on the ordinance on August 24.

In striking down the ban, Washington County Circuit Court Judge Andrew R. Ervin laid out his reasons for striking down the ban.

This is the flaw in the County's interpretation. Their ordinance does not seek to enforce these standards and/or any additional standards, nor does it seek to establish "additional" local qualifications before a retailer may sell flavored tobacco products. Instead, it deletes these standards and qualifications by enacting a blanket prohibition on retail sale of flavored tobacco and nicotine products in Washington County. The County argues that this provision, "grants local authorities' broad power to enact standards regulating tobacco sales." Thus, the County equates "regulating the sale of tobacco products" with prohibiting the sale of otherwise licensed tobacco products. But during oral argument when the Court asked County Counsel whether such standards to regulate gave the County authority to prohibit the sale of all tobacco (flavored or otherwise), the County conceded it did not. Presumably, the County recognizes that the State licensing scheme preempts them from a total ban, but it's hard to understand how that same licensing scheme would in turn authorize a partial ban when those products have been duly licensed by the same legislative scheme that would prevent a complete ban.

A D V E R T I S E M E N T

A D V E R T I S E M E N T

Concluding his decision, Judge Ervin said, "I neither smoke nor use tobacco products and recognize the great personal health hazards that attach to the ingestion of tobacco related products. But the decision to disallow licensed retail sale of such products must come from the state, not county by county. Certainly, the county has broad power to regulate how sales are made, but they cannot bar them entirely."


--Staff Reports

Post Date: 2022-09-20 09:15:06

Last Update: 2022-09-20 11:11:44