If vaping – the use of electronic cigarettes – is as unhealthy and addictive as many medical experts believe (especially for children, teens, and young adults, and women who are pregnant) – Buffalonians should thank New York State for taking aggressive action.
On September 17, 2019, Gov. Andrew M. Cuomo announced that New York is the first state in the U.S. to implement a ban on the sale of flavored electronic cigarettes and nicotine e-liquids. While the ban is effective immediately, the Department of Health will allow retailers a two-week grace period before beginning visits to enforce the flavoring ban.
That’s great. But what have Buffalo’s elected officials done in response to recent health advisories by federal and state agencies triggered by unexplained vaping-associated pulmonary illness? Predictably, not much.
On September 6, Mayor Byron Brown announced that he was “proud” to be issuing a six-month moratorium on the opening of new stores in Buffalo that sell electronic cigarettes and supplies to give the city time to learn more about the health impacts of “vaping” on residents. His Honor’s press release proclaims in all-caps, “MAYOR BROWN ANNOUNCES SUSPENSION OF NEW VAPE LICENSES FOR SIX MONTHS.” It also states, “The resolution, sponsored by Delaware District Common Council Member Joel Feroleto, was unanimously adopted by the Common Council on September 3, 2019.” [Here’s Mayor Brown’s VapeShopMoratorium-PressRelease 09-06-19.]
Mayor Brown’s statement provides the following explanation of the Brown/Feroleto moratorium:
“The City of Buffalo issues licenses and special use permits pursuant to Section 399-13.1 and Chapter 496 of the City of Buffalo Code for the sale of tobacco and electronically delivered nicotine, commonly referred to as ‘vapes’ or ‘electronic cigarettes.’ The [Common Council’s September 3, 2019] resolution requires a moratorium on the issuance of these special use permits while these studies and investigations are ongoing.”
[Note: I know of no provision in the city’s code that requires an individual or business to obtain a “license” to operate a vape shop within the boundaries of the City of Buffalo.]
I have many concerns regarding this feeble and, from what I can tell, unlawful action by Mayor Brown. Here are the primary ones:
First, the real danger to the health of Buffalonians are the numerous vaping establishments already in existence, not the theoretical new ones that might apply to the city to open a store in the next half-year. With or without the Mayor’s moratorium, vape shops continue to pedal their problematic products on Elmwood Avenue, Hertel Avenue, South Park Avenue, Seneca Street, Main Street, etc.
Second, Mayor Brown’s pronouncement, and the Feroleto-sponsored resolution adopted by Buffalo’s legislative body, disregard (or, are ignorant of) an important fact: A “special use permit” approved by the Common Council is only needed to open a vape shop in the following four Buffalo zoning districts pursuant to Mayor Brown’s much-hyped “Green Code”: N-2C [Mixed-Use Center], N-2E [Mixed-Use Edge], N-3C [Mixed-Use Center], and N-3E [Mixed-Use Edge]. In contrast, “vaping establishments” are “permitted by right” in six zoning districts throughout the city. That is, under the “Green Code,” an individual or business can open a vape shop without the need to obtain a “special use permit” in the following districts: N-1D [Downtown/Regional Hub], N-1C [Mixed-Use Core], N-1S [Secondary Employment Center], D-S [Strip Retail], D-C [Flex Commercial], and D-IL [Light Industrial].
As a result of the provisions in the Green Code, a moratorium on the issuance of new special use permits for vaping establishments is an ineffective tool to stop all new vape shops. And it makes a joke out of the purported goal of the Feroleto resolution “to use every possible precaution to limit the potential negative effects of vaping while these studies and investigations are ongoing.” [Here’s the text of Feroleto’s 09-03-19 vape shop resolution.]
[Note: Just a reminder that the so-called “Green Code” – Buffalo’s zoning law – is known officially as the “Uniform Development Ordinance” (UDO) or Chapter 496 of the City of Buffalo Code.]
One can only wonder how our Common Council enacted, and Mayor Brown ceremoniously approved, a new zoning law in January 2017 that allows vaping establishments in many areas of the city “as of right” when the potential adverse health impacts of vaping were already well known at the time. [See, for example, Surgeon General’s 2016 report.]
Third, Mayor Brown does not appear to have the authority to issue this vapid moratorium. Suspending the special use permit process under the Green Code/Uniform Development Ordinance constitutes a temporary amendment of the zoning code. Amending the zoning code (or, any other provision of the City Code) is a “legislative” act which must be performed (following a public hearing) by our legislative body, the Common Council, not by the Mayor. The “Feroleto resolution” seemed to recognize that fact when it stated: “[T]he City of Buffalo Law Department is instructed to draft an ordinance amendment that suspends the issuance of new licenses for six months, to any person, entity, or company that plans to sell primarily tobacco or electronically delivered nicotine for the Common Council’s review.” Nonetheless, I have not heard any Councilmember publicly express dismay at either Mayor Brown’s usurpation of the legislative body’s authority, or the Mayor’s disregard for the separation of powers envisioned in the City Charter and Code (as well as our state and national constitutions).
Fourth, I could envision the Mayor’s staff arguing that Mayor Brown has broad power as the city’s executive to take emergency action when called for. There’s a major problem with such a claim. The only emergency powers a mayor is given in the City Charter and City Code that he or she can exercise unilaterally are the authority to order the emergency hiring of police officers (City Charter Section C-13-12), and to declare “the temporary closing of streets”(Section 413-34 of the City Code).
And, the only provision contained in either the City Charter or City Code pertaining to a mayor’s authority in response to a public health emergency does not appear to pertain to the current situation with e-cigarettes. Entitled “Proclamation to close public entertainment establishments,” Section 158-20 of the City Code:
(a) requires the Mayor to work in tandem with the Health Commissioner, and to issue orders as recommended, in writing by said commissioner;
(b) relates specifically to “the spread of any infectious or contagious disease”; and,
(c) limits the emergency measures to be taken to the “closing of all theaters and other similar places of public entertainment and all gatherings or assemblies of persons for any purpose.” [See City Code, Section 158-20.]
From the various statements issued by federal and state health officials, we are not dealing here with an infectious or contagious disease. And, if we were, common sense would strongly suggest that an urgent health emergency would mandate the immediate suspension of the SALE of vaping products at EXISTING vape shops, not simply a moratorium on the opening of any new vaping establishments.
Fifth, Neither Mayor Brown’s September 6th press release, nor the Feroleto resolution, addresses the steps the City of Buffalo is willing to take if the six-month research effort called for in Mr. Feroleto’s resolution leads to a conclusion that electronically-delivered nicotine presents a severe health risk to city residents. [Note: I find it a bit odd that the resolution adopted by the Common Council instructs the City of Buffalo Law Department –rather than individuals with medical expertise – to perform the investigation.] If the results are dire, I hope that Buffalo’s elected officials (and, Department of Law) will conscientiously consider the following options:
(1) “Exclusionary zoning”. In my opinion, the Common Council has the authority to amend the Green Code/UDO to prohibit vaping establishments throughout the entire city, or to restrict such operations to very limited area of the city, if the scientific facts demonstrate that the existence of vape shops present a significant health risk to Buffalonians. Although an established legal theory – exclusionary zoning – prohibits a municipality from using zoning laws to keep lower and middle socioeconomic groups out [see Berenson v. Town of New Castle, 38 NY2d 102], a city may rationally exercise its police powers (of which zoning is one) to exclude certain commercial or industrial activities in order to protect the public’s health and well-being and promote the interests of the community as a whole. [See, for example, Gernatt Asphalt Products v. Town of Sardinia, 87 NY2d 668.]
(2). “Amortization period” to phase out existing vape shops. If the Common Council were to amend the Green Code to prohibit vape shops, the existing e-cigarette establishments would become “nonconforming uses,” that is, a use that was lawfully established prior to the zoning amendment, but no longer conforms to the zoning code. Our state’s highest court has repeatedly confirmed a municipality’s authority to phase out nonconforming uses through a mechanism called (somewhat misleadingly) an “amortization period.” Under this principle, the City of Buffalo could grant existing vape shops a reasonable period of time to phase out operations as each proprietor sees fit. It would, in effect, grant e-cigarette establishments a “grace period” and, theoretically, a fair opportunity to recoup their investment.
Note: The validity of an amortization period depends on its reasonableness, but the courts have not provided a fixed formula for determining what constitutes a reasonable period. Instead, they have held that an amortization period is presumed valid, and placed a heavy burden on the owner of the nonconforming use to overcome the presumption by demonstrating “that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power.” [See, Village of Valatie v. Smith, 83 NY2d 396.]
In other word, our Common Councilmembers and Mayor will have to give substantially more thought to their next actions regarding the future of vape shops in Buffalo than was apparent in the decision to issue a six-month moratorium on the approval of special use permits.
With all due respect,