Fresno’s new ordinance regulating smoke shops will go into effect as planned while a lawsuit against it will come before a judge next month.
U.S. District Court Judge Kirk Sheriff denied a request from the California Smoke Shops Association to place a temporary restraining order on the ordinance, which would have prevented it from
The backstory: The Fresno City Council voted in April to pass the smoke shop ordinance and limit the number of total retail locations to 49 across the city – seven in each district.
- The ordinance requires smoke shops to apply for a conditional use permit in order to operate in the future. It also bans smoke shops from being within 1,000 feet of sensitive use areas, including schools and day cares.
- Over 30 currently operating smoke shops will be forced to shut down when they do not receive a conditional use permit, since the city estimates that there are around 90 active smoke shops.
- The California Smoke Shops Association sued the city last month arguing the ordinance is unconstitutional and that the city council is attacking smoke shops while not addressing other tobacco retailers.
- The association filed a motion for a temporary restraining order on the ordinance to keep it from taking effect while the lawsuit plays out in court.
Sheriff’s ruling: Sheriff disagreed with the association’s request for a temporary restraining order mostly on the basis that there is no immediate harm that would require such an order before the matter can be fully heard in court.
- Sheriff noted that smoke shops have until July 5 to comply with certain parts of the ordinance, such as installing video surveillance and ensuring litter and graffiti removal.
- McCormick Barstow attorney Shane Smith, representing the smoke shops, argued to Sheriff that the smoke shops are already suffering damages, such as the loss of reputation, and will accrue liability with the city as they go through the permitting process.
- Despite the arguments, Sheriff ruled that the smoke shops association did not show that they will suffer irreparable harm without a temporary restraining order and converted the motion into a motion for a preliminary injunction.
What we’re watching: The smoke shops association will have until June 17 to file their motion for a preliminary injunction. The city will have to have its response in by July 1, with the ensuing reply from the smoke shops association by July 11.
- The parties will return to court on July 25 at 2 p.m. for the hearing on the preliminary injunction.
What they’re saying: “Based on the Court’s ruling, Code Enforcement will work in conjunction with the Planning Department to quickly begin implementing the smoke shop ordinances,” the Fresno City Attorney’s Office said in a statement following the ruling.
