E-cigarettes and vaping have received a very mixed reception in New York.  While the multiplying number of vape shops and booming e-cigarette sales would suggest a surefire rise for the industry in our State, growing opposition from the public and multiple levels of government could nip the industry in the bud.

In 2017, Governor Cuomo signed into law an amendment to the Clean Indoor Air Act prohibiting the use of e-cigarettes and vaping products in any setting where the smoking of traditional tobacco products is prohibited. See Public Health Law §§ 1399-N, 1399-O.  This includes most indoor settings as well as certain outdoor, public and work places.  Today – in response to growing public concern over health effects and teenage addiction to vaping products – the State is now considering a ban that would strictly regulate all but a few of the available “vape juice” flavors (particularly, kid-friendly flavors like bubblegum, breakfast cereal, and cotton candy) in an effort to make vaping less attractive to young consumers.  See, Brodsky, Robert “LI vape shops would close, some say, if NY bans flavored e-cigarettes”, Newsday, Nov. 9, 2018.

At the local level, a growing number of Counties across the State, including Nassau and Suffolk Counties, have raised the minimum age for the purchase of tobacco products (including e-cigarettes) from 18 to 21.  The Town of North Hempstead also recently joined that list.   See Town of North Hempstead Code § 54-1 (2017). Certain counties, like Suffolk County, are also currently weighing options for enacting their own restrictions on the sale of flavored vaping products. See Tyrell, Joie “Rally backs bill to limit flavored e-cigarettes in Suffolk County” Newsday, December 13, 2018.

Based on these trends, it is unsurprising that government at the most local level, towns and villages, are also utilizing their police powers to join in the fight against e-cigarettes and vaping.  On Long Island alone, numerous towns and villages have enacted local controls on the use of vaping products and the locations where they may be sold.  Some municipalities have acted in a limited sphere by prohibiting the use of e-cigarettes and vaping products on or in the vicinity of public property (i.e. parks and government buildings) and in proximity to schools and places of worship. See Town of Hempstead Code § 78-3.2 (2018); Village of East Hampton Code § 211-17 (2018).  Others have turned to their zoning power to remove establishments selling e-cigarettes and vaping products from their downtowns and commercial centers. See Town of Babylon Code §§ 213-129.1, 213-166, 213-166.1, 213-490 (2018); Town of Islip Code § 68-341.1 (classifying “vape lounges” and “vape shops” as adult uses and permitted only in the Industrial 1 District) (2016); Town of Smithtown Code § 322-30.5 (2018) (prohibiting vape stores and lounges within 1,500 feet of parks, playgrounds, schools and religious uses); Village of Floral Park Code § 99-18 (2018) (classifying vape shops as adult uses permitted only in the B-3 Business District).  One village has enacted an outright ban on the sale of vaping products in its business districts. See Village of Lindenhurst Code § 193-92 (2017).

Proponents and purveyors of e-cigarettes and vaping products are decrying the mounting regulations governing the industry and some are now attempting to push back. See Rowland, Matt “Using ‘family-friendly’ excuse, Lindenhurst, NY wants to ban vape shops” Vapes.com, October 4, 2017.  A quiet town in suburban Westchester County could be the test case on whether a local zoning ordinance in our State aimed at e-cigarettes and vaping products is a valid exercise of a local government’s land use power.

In May, 2018, the Town of Bedford, New York, adopted Local Law No. 5 of 2018, which enacted 125-29.8 of the Town Code, regulating “electronic nicotine delivery systems”.  Citing public health and safety concerns, the law confines “vape shops” to the Town’s Roadside Business (RB) Zoning District, which is situated in one area of the Town.  The law goes one step further to prohibit the sale of electronic nicotine delivery systems (i.e. e-cigarettes and vape pens) at any business outside the RB Zoning District, regardless of the principle use of the property.  See Town of Bedford Code § 125-29.8(C)(3) (2018).

It has since been reported that a group of gas station owners and operators in the Town of Bedford (located outside the RB Zoning District) have filed suit against the Town, challenging the legality of the 2018 zoning amendment.  See McKinney, Michael P. “Several gas businesses sue Bedford over law restricting e-cigarette sales” Rockland/Westchester Journal News, December 19, 2018.  If lawsuit goes forward, it will be one of the first (if not the first) challenging a local zoning enactment targeting e-cigarettes and vaping.  The outcome of the action will, therefore, be of tremendous interest to supporters and opponents of vaping alike.

At the end of the day, e-cigarettes and vaping products are already in the market place and have proven themselves to be profitable.  Therefore, in the opinion of this writer, it is unlikely that they will be banned in New York completely.  After all, traditional cigarettes and tobacco products continue to be sold in convenience stores and other businesses throughout the State despite the now widely known and accepted health problems they cause.  And like “Big Tobacco”, the purveyors of this generation’s e-cigarettes and vaping products may simply need to come to terms with strict regulatory requirements and negative social opinion as the price of doing business in New York (and elsewhere).  We will all just have to wait and see.

 

Local governments in New York may regulate land use within their borders directly through their zoning codes and indirectly by adopting a variety of other statutes and regulations. There are, however, limits to their power. Municipalities, of course, must not discriminate on the basis of religion in violation of the U.S. or New York State Constitutions or other applicable federal or state laws.

That message was delivered loud and clear in a recent decision by the U.S. District Court for the Southern District of New York in a long-running court battle over a proposed rabbinical college in the Village of Pomona, in Rockland County.  In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 07-CV-6304 (KMK)(S.D.N.Y. Dec. 7, 2017), the Court, following a 10-day bench trial, ruled that the Village could not use zoning and other laws it adopted to thwart the construction of the rabbinical college and associated dormitory housing proposed in the community.  In an earlier proceeding to consider the parties’ motions for summary judgment and a punitive motion for sanctions against the Village for the spoliation of evidence, the Court granted portions of each party’s motion, including the sanctions motion that resulted in an award of attorneys’ fees and costs relating to the spoliation dispute.  See Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 7-2007-CV-6304 (KMK)(S.D.N.Y. 2015).  For a more detailed discussion of the pre-trial motions, see Charlotte Biblow’s two-part blog post, How To Spend Over $1.5 Million (And Counting) of Taxpayer Funds Defending A Land Use Claim and Facebook Posts And Text Messages Result In Monetary And Other Sanctions Being Imposed Against A Municipality.

The case involved approximately 100 acres of land in Pomona purchased in 2004 by the Rabbinical College of Tartikov, Inc. Tartikov sought to build a “kollel” or rabbinical college on the property that would include housing for its students – all affiliated with the Orthodox Jewish community, including various sects of the Hasidic community – and the students’ families. According to Tartikov, the on-campus housing would permit students to study from 6 a.m. until 10 p.m. and also to meet their religious obligations to their families.

Tartikov and future students and faculty (collectively, the “Plaintiffs”) commenced an action in 2007 to challenge portions of three laws that Pomona adopted: an “Accreditation Law,” which defined educational institutions and dormitories; a “Dormitory Law,” which limited the size of dormitories; and a “Wetlands Law,” which established wetlands protections in the Village (collectively, the “Challenged Laws”).  The Plaintiffs argued that the Challenged Laws effectively prevented the construction of Tartikov’s rabbinical college in the Village and were discriminatory and substantially burdened their religious exercise.  The Village claimed that the Challenged Laws had been passed for legitimate reasons and were intended to prevent the construction of a large number of housing units for students and their families that the Village contended would overburden its infrastructure and detract from its rural character.

The Court ruled that the Village passed the Challenged Laws “with a discriminatory purpose.”  Specifically, the Court opined that the Village enacted the Challenged Laws to prevent the spread of the Orthodox/Hasidic community within the Village, and, in certain respects, to specifically target Tartikov and the property it owned. The Court said that it based this conclusion “on the context in which the laws were adopted” and “the unsatisfactory and incredible reasons presented for their adoption.”  The Court noted that a number of Village officials had made statements indicative of their prejudice towards Tartikov and Orthodox/Hasidic Jews. The Court also pointed out that members of the community expressed animus towards Orthodox/Hasidic Jews and that the Village’s Board of Trustees “acted on that animus.”

While the Court invalidated the Challenged Laws as a violation of the Plaintiffs’ First and Fourteenth Amendment rights to freely exercise their religion and equal protection of the laws, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., the Fair Housing Act, 42 U.S.C.  3601 et seq., as well as their right to freedom of worship under the New York Constitution, local government officials and their counsel should be guided by the Court’s critical focus on the discriminatory motives behind the Village’s adoption of these laws. The evidence cited by the Court for its conclusions and its application of that evidence to constitutional and statutory standards highlights the official and non-official actions that government officials should avoid when faced with similar circumstances.