An association representing Fresno smoke shop owners is asking a federal judge for a restraining order to block the start of new city regulations on the industry.

Judge Kirk Sherriff will hear the request for a restraining order Tuesday at 3 p.m.

The California Smoke Shops Association filed a lawsuit that calls the regulations unconstitutional. The new city ordinance — set to take effect on Thursday, June 5 — would limit only 49 smoke shops city wide. Stores would have to comply with the new regulations 30 days later by July 5.

Attorneys for the smoke shops boiled the legal issue into a single question:

“Do the federal and state constitutions permit Defendant CITY OF FRESNO (‘City‘) to shut down legal, licensed businesses without a rational basis for doing so? The answer is ‘no,'” the motion said.

The association said the regulations would close at least 33 legal and complying shops without just compensation or reasoning.

“If the Ordinance becomes effective, existing Licensed Smoke Shops will be irreparably harmed,” the motion said.

Fresno City Attorney Andrew Janz countered, saying there is “no immediacy of harm to plaintiffs since they are already required to follow the law.”

Related Story: Fresno Smoke Shops Sue City Hall, Want to Block New Rules

Only 49 Stores Can Operate

The city ordinance, passed by a 4-1 vote on April 24, would allow shops that do not win a lottery for the 49 permits to operate 18 months to wind down business. Existing shops would not be grandfathered.

Concerned about the effects of smoke shops on the community, councilmembers Miguel Arias, Nelson Esparza, and Annalisa Perea pushed for regulations and a mechanism to close down bad actors.

The ordinance also regulates what shops sell, and how they advertise. Smoke shops must be at least 1,000 feet from “sensitive uses,” which include schools, parks, and other smoke shops.

Permits would be distributed by lottery for qualified applicants.

“The City Attorney’s Office, in conjunction with the Attorney General, will continue to aggressively pursue bad actors who sell illegal and dangerous products to children. We have good reason to believe there are out of compliance smoke shops who are members of this association suing the City and we look forward to obtaining a membership list during discovery,”  Janz said.