Can my Arkansas city zone or limit where vape shops can open?

Plain-English summary

Representative Carlton Wing asked whether Arkansas local governments can regulate or zone vape shops, what limits apply, and which state laws guide them. The AG answered that a city or county may limit, regulate, zone, or restrict a vape shop unless its action conflicts with state or federal law. Local action also must stay within the government's authority and avoid being unreasonable, arbitrary, or capricious. The AG lacked facts to evaluate any particular ordinance.

Arkansas tobacco laws preempt local rules about vapor or e-liquid products that are more restrictive than state law or tobacco-control rules. The AG identified local changes to the minimum purchase age or child-resistant packaging requirements, and interference with state tobacco-control permitting or inspection, as conflicts. He also said the state permit authority does not prevent local zoning of vape-shop locations, and state law contemplates appropriately zoned addresses.

Zoning decisions are legislative and generally presumed valid. A local government needs a reasonable basis for a distinction. The AG said a city or county may zone vape shops to mirror similar businesses, subject to constitutional and preemption limits. He did not assess a total ban, a school-distance buffer, a special-use permit, or a particular existing shop.

What this means for you

City councils and county officials

The opinion recognizes local authority over vape-shop zoning while identifying state product-regulation limits. It requires review of a proposed ordinance's actual wording and facts before deciding validity. Its general analysis does not approve a particular buffer, permit requirement, or ban.

Vape-shop operators and residents

The AG distinguishes a state tobacco-control permit from local zoning. A permit cannot issue for an address not appropriately zoned for the business, but the opinion does not decide whether a given address or local rule qualifies.

Common questions

Can a city zone where vape shops operate?
Yes, subject to the limits the AG describes. He says state tobacco-control permit authority does not itself bar local zoning.

Can a local government change the minimum age or packaging rule? The AG identifies a local change to the minimum age and stricter child-resistant packaging as examples that conflict with state law.

Did the AG approve a school buffer or special-use permit?
No. The opinion does not examine those measures or any specific ordinance.

Background and statutory framework

A.C.A. § 26-57-267 and related tobacco-control provisions limit more restrictive local regulation of vapor and e-liquid products. A.C.A. § 26-57-216 addresses state permits and appropriately zoned business addresses. The AG also cites federal tobacco preemption in 21 U.S.C. § 387p(a)(2) and Arkansas zoning cases concerning legislative validity and rational distinctions. His opinion stops short of applying those tests to a specific local rule.

Citations

• A.C.A. § 26-57-267; § 26-57-216
• 21 U.S.C. § 387p(a)(2)(A)–(B)
• Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998)
• City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-087

October 2, 2023

The Honorable Carlton Wing
State Representative
2513 McCain Boulevard, Suite 208
North Little Rock, Arkansas 72116

Dear Representative Wing:

I am writing in response to your request for my opinion on questions concerning the authority of political subdivisions to regulate vape shops. You have asked three questions, some of which I have paraphrased.

1. Can a city, county, or other municipality limit, regulate, zone, or restrict a vape shop located within its jurisdiction?

2. Does a city, county, or other municipality have limits on how it restricts, regulates, or zones a vape shop?

3. Do any current state laws provide guidance on this topic to our cities, counties, and other municipalities?

RESPONSE

A city or county may limit, regulate, zone, or restrict a vape shop located within its jurisdiction unless the regulation conflicts with state or federal law.

DISCUSSION

1. General authority. Arkansas law grants cities, counties, and other municipalities the
   “police power”—a “plenary duty [to be exercised] in the interest of the public health and safety of its inhabitants.” 1 Consequently, a city, county, or other municipality may exercise its police power to regulate vape shops by enacting ordinances to protect public health, 1 Phillips v. Town of Oak Grove, 333 Ark. 183, 189, 968 S.W.2d 600, 603 (1998); see Dabbs v. State, 39 Ark. 353, 357, 1882 WL 1640, *3 (1882) (holding that the police power “extends to the protection of the lives, health, comfort[,] and quiet of all persons and the protection of all property within the State”). The Honorable Carlton Wing State Representative Opinion No. 2023-087 Page 2

safety, and welfare. 2 But a city, county, or other municipality cannot regulate vape shops in a way that is: (1) preempted by or in conflict with state or federal law; 3 (2) unreasonable, arbitrary, or capricious; 4 or (3) outside the scope of its statutory or constitutional authority. 5

I lack sufficient facts to assess whether the latter two apply here. But, under certain circumstances more fully described below, state law restricts local governments from regulating vape shops and the products they sell. Federal law does not generally preempt states from regulating distribution, possession, age-restrictions, and “exposure to, access to, the advertising and promotion of, or use of [vapor and e-liquid products].” 6

2. State law limits. Arkansas tobacco control laws expressly “preempt the enactment and
   enforcement of any county, municipal, or other local regulation of the manufacture, sale, storage, or distribution of vapor products…or e-liquid products that is more restrictive” than the Arkansas Tobacco Products Tax Act of 1977, A.C.A. § 26-57-201 et seq., or the Arkansas Tobacco Control rules. 7

Hence, the following local-government regulations would conflict with state law:

• Any change to the minimum age to purchase or possess vapor and e-liquid products; 8

2
See A.C.A. § 14-55-102 (authorizing municipal corporations to create ordinances, “not inconsistent with the laws of this state…necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof….”). 3 Ark. Const., art. 12, § 4; A.C.A. §§ 14-43-601, 14-54-101, 14-55-102; see Municipality of Helena-W. Helena v. Weaver, 374 Ark. 109, 114, 286 S.W.3d 132, 136 (2008) (noting that any ordinance that conflicts with state statutes is void under the Arkansas Constitution). 4 Phillips, 333 Ark. at 190, 968 S.W.2d at 604; see also City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 339, 916 S.W.2d 95, 98–99 (1996) (defining “arbitrary” and “capricious”); Baldridge v. City of N. Little Rock, 258 Ark. 246, 254–55, 523 S.W.2d 912, 916–17 (1975) (same). 5 Phillips, 333 Ark. at 189, 968 S.W.2d at 603.
6
21 U.S.C. § 387p(a)(2)(B); but see 21 U.S.C. § 387p(a)(2)(A) (preempting certain state laws concerning “product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products”). 7 A.C.A. §§ 26-57-267 (emphasis added), A.C.A. § 26-57-259(a)(2)(A); see A.C.A. §§ 26-57-203(12) (defining “e-liquid” and “e-liquid product” to include “a liquid product, which may or may not contain nicotine, that is inhaled when using a vapor product….”), 26-57-203(34) (defining “vapor product” to include any “electronic oral device of any size or shape that contains a vapor of nicotine, e-liquid, or any other substance that when used or inhaled simulates smoking….”). 8 A.C.A. §§ 26-57-203(19)(A) (defining “minor” as anyone under 21 years of age), 5-27-227 (sale-to-minor restrictions). The Honorable Carlton Wing State Representative Opinion No. 2023-087 Page 3

• Changing the child-resistant packaging requirements concerning “e-liquid containers” to a stricter standard; 9 or

• Preventing or inhibiting the Arkansas Tobacco Control Director or Board from issuing permits, assessing civil penalties, or inspecting or investigating businesses that sell vapor and e-liquid products during regular business hours. 10

Under A.C.A. § 26-57-216, the Arkansas Tobacco Control Director and Board are authorized to “determine…[t]he number of permits to be granted in the state… [t]he locations thereof…[and the] persons to whom they are to be granted.” But this authority pertains to tobacco control permits. That is, the statute does not prevent local governments from zoning or otherwise regulating the location of vape shops so long as the regulation does not interfere with Arkansas Tobacco Control’s authority to issue and regulate Arkansas Tobacco Control permits. Further, state statutes contemplate the zoning of vape shops: Arkansas Tobacco Control cannot issue a permit to a vape shop whose “address [is] not zoned appropriately for the business seeking to secure the permit.” 11

3. Zoning limits. Zoning ordinances are “legislative in nature,” 12 and presumed valid and
   constitutional as a matter of law. 13 Therefore, a court’s review of zoning ordinances is limited to whether the decision to zone or rezone was “arbitrary, capricious, or unreasonable.” 14 Under this standard, a political subdivision would need to show a reasonable basis for enacting or amending the zoning ordinance. 15 A zoning ordinance need

9
See A.C.A. § 26-57-254(c)–(d) (establishing minimum child-resistant packaging effectiveness standards).
10
See A.C.A. §§ 26-57-257(j) (authorizing Director to “inspect or cause to be inspected any premises where…vapor products…or e-liquid products are manufactured, imported, distributed, stored, or sold….”), 26-57-254(a) (authorizing Director to “[i]nspect or cause to be inspected any…vapor product…or e-liquid container in places of storage or distribution….”), 26-57-266 (authorizing the Director to assign agents “to conduct investigations of violations of tobacco laws in this state….”); but see Tompos v. City of Fayetteville, 280 Ark. 435, 437–38, 658 S.W.2d 404, 406 (1983) (noting that when statutory authority “is unexercised; it is not in conflict [with the applicable ordinance] ….”). 11 A.C.A. § 26-57-216.
12
E.g., Bolen v. Washington Cnty. Zoning Bd. of Adjustments, 2011 Ark. App. 319, 12, 384 S.W.3d 33, 41; PH, LLC v. City of Conway, 2009 Ark. 504, 11, 344 S.W.3d 660, 666; City of Little Rock v. Breeding, 273 Ark. 437, 442, 619 S.W.2d 664, 667 (1981).

13
City of Lowell, 323 Ark. at 338–39, 916 S.W.2d at 98; see also Craft v. City of Fort Smith, 335 Ark. 417, 424, 984 S.W.2d 22, 26 (1998) (reviewing zoning ordinance under equal protection and substantive due process constitutional analysis). 14 PH, LLC, 2009 Ark. at 12, 344 S.W.3d at 667; City of Lowell, 323 Ark. at 337, 916 S.W.2d at 97.
15
City of Lowell, 323 Ark. at 338–40, 916 S.W.2d at 98–99.
The Honorable Carlton Wing
State Representative
Opinion No. 2023-087
Page 4

not “treat all people or activities similarly…so long as there is a rational basis for the distinction.” 16

While a county or city has the authority to zone or rezone vape shops to mirror the zoning of similar businesses, a county or city should review the language of any zoning ordinance to ensure it comports with the constitutional requirements above and does not conflict with state or federal law. I lack sufficient facts to determine whether any specific ordinance violates constitutional law or conflicts with state or federal law.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

16
Craft, 335 Ark. at 425–26, 984 S.W.2d at 26–27 (reviewing a zoning ordinance under an equal protection constitutional analysis).