A trade group representing Fresno smoke shop owners filed a lawsuit Monday, asking a federal judge to block regulations imposed by the city council.

The California Smoke Shops Association said the city’s restriction of only seven smoke shops in each of the seven council districts — 49 total — would put at least 33 shops out of business.

“The Ordinance will immediately cause CSSA’s members substantial and irreparable harm in the form of lost value of their business, lost business advantages, and even closure as Smoke Shops will be required to comply with the Operational Requirements,” the lawsuit said.

The exact number of smoke shops is a matter for debate. At various times, the city has said there were 82 licensed smoke shops, up to 800 more that are exempt tobacco retailers — such as grocery and convenience stores — and at least 88 that operate illegally.

The association also called the ordinance — which received final approval on April 24 with a 4-1 vote with one abstention and one absence — “onerous regulatory requirements while ignoring significantly more other purveyors of identical products.”

“The ordinance is ill-supported, ill-conceived and ill-intended. The Association is confident the Federal Court will recognize the City’s failures when the Court reviews the ordinance and the City Council’s improper actions and will invalidate the ordinance,” CSSA’s attorney Todd Wynkoop said in a news release.

The lawsuit lists the city, and the four councilmembers who voted in favor — Miguel Arias, Nelson Esparza, Annalisa Perea and Brandon Vang — as defendants.

Wynkoop said he will file an additional motion soon requesting an injunction hearing. Regulations go into effect June 5, meaning smoke shops have 30 more days to comply.

City Attorney, Councilmember Vow to Fight On

Esparza justified the new regulations in the face of the lawsuit.

“It’s nothing unexpected. The smoke shop ordinance is legislation that our city desperately needed and it wasn’t personal toward those folks. In that same vein, I don’t take it personally that they’re doing what they think they have to do,” Esparza said.

City Attorney Andrew Janz said he is prepared to defend the regulations.

“The City Council has broad authority to enact legislation to protect our neighborhoods and residents. This lawsuit will not deter the City Attorney’s Office from continuing our coordinated efforts with the Attorney General to crackdown on illegally operating smoke shops who sell drugs to kids,” Janz said.

Lawsuit Details

The lawsuit said closing down the shops violates several constitutional rights, such as due process, and the right to private property unless justly compensated. It said the city council is picking winners and losers.

The association said regulations on stores defined as smoke shops, without regulating other tobacco sellers such as grocery stores, convenience stores, and cannabis shops, gives others “unfair economic and competitive advantages.” CSSA said smoke shops represent 15% of city tobacco sellers.

“The City need simply to enforce these existing laws, rather than targeting the properly licensed Smoke Shops,” the lawsuit states.

The lawsuit said the city council made technical errors when it voted on the ordinance on April 24, by not providing proper notice.

The city also engaged in “shenanigans” and “Orwellian tactics,” according to the lawsuit, in the meeting minutes description of the events of a March 13 vote on the ordinance. The lawsuit said the city changed the description of what exactly happened during that vote.

The Ordinance

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

CSSA agreed with the overall goals in a lawsuit footnote.

“Unlicensed shops harm the community, injure the operation of licensed Smoke Shops, and create a black market that hurts the community and licensed Smoke Shops,” the lawsuit said. CSSA said unlicensed shops are not allowed to be part of its group.

After crafting regulations for nearly a year, the first attempt failed on March 13 with a 3-3 vote. The city council only had six members at the time. When Brandon Vang won a special election and took his seat in April, the ordinance returned. Vang’s fourth vote pushed the regulations over the top.

The new ordinance provided definitions for smoke shops — mainly any business that primarily sells smoke and vapor products.  “Tobacco retailers” sell the same products as “incidental sales.”

All smoke shops must obtain a conditional use permit, with only 49 available citywide. Stores not obtaining a CUP must close within 18 months. Existing shops would not be grandfathered, despite a recommendation from the city’s planning commission.

Permits would be distributed by lottery for qualified applicants.

Smoke shops can only be located at least 1,000 feet away from “sensitive uses,” which include schools, parks, and other smoke shops.

Regulations also include lighting and cleanliness requirements, video surveillance, restrictions on signs and windows, and nuisance/loitering avoidance.

Stores could only be open 8 a.m. until 10 p.m. Security and training are required.

Smoke shops would not be allowed to sell marijuana and flavored tobacco, or host gambling.

The city may fine violating shops — $2,500 for selling to minors; and $1,000 for breaking advertising rules. Additionally, stores could be fined $500 for each prohibited item found during an inspection.

The case is California Smoke Shops Association v. City of Fresno, case number 1-25-at-00399.