The Tooele City Council voted unanimously Wednesday to adopt an updated tobacco specialty store ordinance that has the potential to reclassify some local convenience stores.
The amendment integrates the state’s definition of “tobacco specialty store” into a pre-existing city ordinance that prohibits tobacco specialty retailers from locating within 1,500 feet of community venues such as parks, schools and libraries, as well as homes and churches.
Under the new definitions, all business where tobacco sales account for more than 35 percent of the store’s gross annual receipts, and where sales of food and beverages account for less than 45 percent of the gross annual receipts, will be considered tobacco specialty stores.
Additionally, the ordinance defines “tobacco products” as all products containing tobacco, as well as electronic cigarettes, e-cigarette components and tobacco paraphernalia such as pipes and rolling paper.
State law trumps city ordinance, so these definitions were already in effect in some areas. However, state law restricts tobacco specialty stores from locating within a 1,000 foot buffer. By adopting its own amended ordinance, the city effectively extended those definitions and restrictions out an additional 500 feet.
The city council originally slated a vote on the amendment for last November, but postponed it until Wednesday’s city council meeting after questions about how to enforce the new definitions arose.
Tooele City Attorney Roger Baker said that despite his best efforts, he was never able to get a good answer to his questions about how the state enforces its own statute. Consequently, he proposed that the city work with local businesses to determine how best to monitor sales receipts.
“The state of Utah does not collect the information on tobacco sales that state law would seem to require,” he said. “In this way it seems we are pioneers again in setting the standard and how to enforce it.”
The city council took steps to make the amended ordinance retroactive through Utah’s “pending ordinance rule.” Under the pending ordinance rule, municipalities may make ordinances retroactive to some degree so long as a Notice of Pending Ordinance is posted when the lawmaking process begins. The new amendment will apply to all tobacco retailers that opened after Sept. 20, 2013 — the date of a notice posted on Tooele City’s website.
The city also received a business license application from Al’s Shop, a local convenience store with a history of conflict with the city, on Sept. 20. A note on the application indicates the convenience store will be expected to comply with pending changes to the tobacco specialty stores definition.
Though currently operating as a locally-owned convenience store, Al’s Shop, located at 502 N. Main Street, was once one of two LA Smoke Shop locations in Tooele. The store opened before the Tooele City Council passed their original tobacco specialty stores ordinance, and so it was grandfathered into city law and permitted to continue operating in a restricted area. Earlier this year, the city pulled both LA Smoke Shop business licenses on account of alleged illegal activity.
In April, both LA Smoke Shop locations were caught up in a year-long sting operation executed by the Tooele City Police. Officers in plain clothes entered the stores and asked to buy spice, an illegal synthetic cannabinoid also known as potpourri, on at least four occasions, Tooele City Police Chief Ron Kirby said. The stores sold the drug on all four occasions, resulting in the revocation of each stores’ business license.
Since re-opening as Al’s Shop in the fall of 2013, the business has been operating as a convenience store.
A manager at Al’s Shop declined to comment on the new store’s opening or on the proposed ordinance amendment, but a manager at a third store also impacted by the spice bust said her decision to re-open the business was not an attempt to flout city ordinance, but to avoid dealing with the increasingly complicated requirements that came with operating a tobacco specialty store.
Cyndia Shaw, a manager at the newly-opened One Stop Shop at 1221 N. Main Street, and a former employee at Smokes 4 Less, said she and several of her former coworkers had trouble finding work after the city put their employer out of business. So the coworkers banded together and bought the store out from under their former employer.
To avoid further conflict with the city, Shaw said she explicitly made the new shop as a convenience store that sells gifts, ice cream, snack foods and beverages to avoid the legal complications that selling an extensive array of tobacco products brought with it.
Like most convenience stores, One Stop Shop does offer a limited selection of cigarettes, but Shaw said she intentionally avoids stocking a wide selection of anything that might be deemed a tobacco product. Nonetheless, she fears her business could occasionally exceed the 35 percent limit.
Prior to the vote, Dave McCall, a member of the city council, asked what the city intended to do about convenience stores that might exceed the 35 percent limit, and thus risk reclassification. Baker responded that the city would avoid shuttering those businesses, but would have to make the appropriate changes to the store’s business license. If the business were located in a restricted area, the shop would have to find a way to sell fewer tobacco products, he added.
Tooele City plans to send a letter to all businesses potentially impacted by the newly amended ordinance. According to a letter draft released during Wednesday night’s city council meeting, businesses that receive the letter will be expected to report their 2013 sales receipts to the city by April 1. Those businesses that fail to report in time may have their Tooele City business licenses revoked.