Can my Oklahoma city pass a zoning ordinance keeping tobacco and vape shops at least 300 feet from schools and other youth facilities?

Plain-English summary

Oklahoma's Prevention of Youth Access to Tobacco Act (63 O.S. §§ 1-229.11–229.26) preempts most local regulation of tobacco, nicotine, and vapor products. Cities cannot pass ordinances "concerning the sale, purchase, distribution, advertising, sampling, promotion, display, possession, licensing or taxation" of those products. But § 1-229.20 carves out one important exception: nothing prevents a political subdivision from "exercising its lawful authority to regulate zoning or land use."

Representative Brad Boles asked whether that carve-out lets a city pass a zoning ordinance keeping tobacco/vape stores at least 300 feet from schools and other facilities used primarily by people under 21. AG Drummond said yes.

The opinion also addresses the grandfather-clause question. Under 11 O.S. § 44-107.1(A), an existing nonconforming use must generally be allowed to continue. But the same statute lets the city designate conditions or circumstances that terminate the nonconforming-use right. The AG said the proposed ordinance's termination on sale likely complies with that statute. A footnote discusses Triangle Fraternity v. City of Norman (2002) specifically when a city designates a change in use as a termination condition; it does not make substantial change a prerequisite for termination on sale.

What this means for you

If you sit on a city council in Oklahoma

You can pass a 300-foot setback ordinance for tobacco and vape retailers around schools and youth facilities. To survive challenge:

1. Follow the procedural requirements in 11 O.S. §§ 43-104 and 43-105: published notice in a local newspaper with map, public hearing, and a higher-vote threshold (3/4 or 3/5) if 20% of nearby owners protest.
2. Include a grandfather clause for existing businesses (mandatory under § 44-107.1).
3. If you want grandfathered status to end on sale, specify that condition in the ordinance. The AG concluded that the proposed sale condition likely complies with § 44-107.1(A).
4. Make sure the ordinance regulates location, not the underlying sale (which is preempted). Frame it strictly as a zoning rule.

If you operate a tobacco or vape store

If your existing business becomes a lawful nonconforming use under the proposed ordinance, its grandfather clause would allow continued operation until a specified termination condition applies. The proposed ordinance would end that status upon sale to a new owner.

If you are planning a new store, check the local ordinance for setback requirements before signing a lease.

If you are a public health advocate

The opinion addresses the proposed 300-foot setback for businesses selling tobacco, nicotine, or vapor products near facilities used primarily by people under 21. It requires the statutory notice and hearing procedures and a grandfather clause for lawful nonconforming uses.

If you are a real-estate or land-use attorney

The opinion sharpens a common preemption argument. Section 1-229.20 expressly preserves local zoning, so a zoning ordinance regulating store location is on safe ground. A licensing ordinance, an advertising ordinance, or a sales restriction would be preempted. The boundary is between "where" (allowed) and "what/how" (preempted).

If you advise local governments on grandfather clauses

The Court of Civil Appeals in Material Serv. Corp. v. Town of Fitzhugh (2015) treated the grandfather provision in § 44-107.1(A) as mandatory despite the statute's use of "may." The AG viewed sale as a permissible designated circumstance that likely complies with § 44-107.1(A). Its Triangle Fraternity caution applies when a municipality uses change in use as the termination condition.

Common questions

Q: Can the city ban tobacco or vape sales outright?
A: No. Section 1-229.20 preempts ordinances "concerning the sale" of tobacco, nicotine, or vapor products. The city can only regulate location through zoning.

Q: Does the 300-foot rule have to be 300 feet?
A: The opinion answers a question about a proposed 300-foot setback. It does not evaluate a different distance.

Q: Can the city require existing stores to relocate?
A: No. The grandfather clause under § 44-107.1(A) is mandatory. The city can terminate the grandfathered status under specified conditions (sale, expansion, etc.) but cannot just shut down nonconforming uses on the date the ordinance takes effect.

Q: What facilities count as "primarily used by persons under twenty-one"? A: The opinion does not define this. The proposed ordinance presented by the legislator referred to schools. Cities should write a clear definition (e.g., K-12 schools, daycares, youth recreation centers) supported by their public-health rationale.

Q: Can adjacent property owners block the ordinance?
A: They can trigger a higher voting threshold. If owners of 20% of the area in the proposed change protest, or owners of 50% of the lots within 300 feet of its boundary protest, § 43-105 requires a favorable vote of three-fourths of the governing body when it has more than seven members, or three-fifths when it has seven or fewer.

Q: Does the ordinance apply to mobile vendors or online sales? A: The opinion does not address mobile vendors or online sales.

Background and statutory framework

The Prevention of Youth Access to Tobacco Act, enacted in 1994 and codified at 63 O.S. §§ 1-229.11–229.26, is Oklahoma's main statutory framework limiting youth access to tobacco and vape products. The Act preempts local regulation of tobacco and vape products in subsection 1-229.20: except for zoning.

Municipal zoning authority comes from 11 O.S. § 43-101, which allows a municipality to "regulate and restrict the location and use of buildings" to promote "the health, safety, morals, or the general welfare of [its] community." The Oklahoma Supreme Court has called zoning "a valid exercise of the municipal police power and a legislative function" (Garrett v. City of Oklahoma City, 1979).

Two cases bound the local-zoning power: 7-Eleven, Inc. v. McClain (1967) and Fancy’s Entertainment L.L.C. v. City of Enid (2007). Both struck down ordinances that effectively banned conduct lawful under state law in fields the state had reserved to itself. The 300-foot setback ordinance does not run into those decisions because the state has not preempted location-based zoning of tobacco retail and the carve-out in § 1-229.20 expressly preserves zoning authority.

Nonconforming use is governed by 11 O.S. § 44-107.1. Subsection (A) requires the city to allow continued nonconforming use but allows termination via designated conditions. Subsection (B) requires notice and hearing. Subsections (C) and (D) protect oil-and-gas activity and lawful nonconforming signs.

Citations and references

Statutes:

• 11 O.S.2021, § 43-101, Municipal zoning authority
• 11 O.S.2021, §§ 43-104, 43-105, Zoning hearing and protest procedures
• 11 O.S.2021, § 44-107.1, Nonconforming use
• 63 O.S.2021, § 1-229.20: Tobacco Act preemption with zoning carve-out

Cases:

• Vinson v. Medley, 1987 OK 41, 737 P.2d 932, broad zoning authority
• Garrett v. City of Oklahoma City, 1979 OK 60, 594 P.2d 764, zoning is a valid police-power function
• 7-Eleven, Inc. v. McClain, 1967 OK 7, 422 P.2d 455, limits on field-preemption ordinances
• Triangle Fraternity v. City of Norman, 2002 OK 80, 63 P.3d 1, termination conditions for nonconforming use
• Material Serv. Corp. v. Town of Fitzhugh, 2015 OK CIV APP 13, 343 P.3d 624, grandfather clause is mandatory

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-16.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-16.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-16
The Honorable Brad Boles
Oklahoma House of Representatives, District 51
2300 N. Lincoln Boulevard, Room 244
Oklahoma City, OK 73105

December 29, 2023

Dear Representative Boles:
This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:

1. May a municipality adopt a zoning or land use ordinance which has the effect
   of prohibiting any business that sells tobacco, nicotine, or vapor products from locating within 300 feet of any existing facility which is used primarily by persons under twenty-one years of age?
2. If a municipality may adopt such a zoning or land use ordinance, would a
   “grandfathered-in” business lose that status upon its sale to new ownership? I.

SUMMARY
An Oklahoma municipality may lawfully enact an ordinance to restrict the zoning of an establishment selling nicotine or tobacco products. Determining whether a “grandfathered-in” business loses its lawful nonconforming use status will depend on the specific text of the ordinance adopted and thus turns on a question of fact. Notwithstanding, the proposed ordinance, as written, complies with title 11’s requirements concerning nonconforming use. II.

BACKGROUND
A.

Municipal legal authority concerning zoning

Oklahoma law is well established that a municipality has the authority to “regulate and restrict
. . . the location and use of buildings” in order to promote “the health, safety, morals, or the general welfare of [its] community.” 11 O.S.2021, § 43-101 (emphasis added); Vinson v. Medley, 1987 OK 41, ¶ 6, 737 P.2d 932, 936 (citing Garrett v. City of Okla. City, 1979 OK 60, ¶ 4, 594 P.2d 764, 765). The Oklahoma Supreme Court has said “zoning is a valid exercise of the municipal police power and a legislative function,” which the courts will not override unless the particular

313 N.E. 21ST STREET • OKLAHOMA CITY, OK 73105 • (405) 521-3921 • FAX: (405) 521-6246

The Honorable Brad Boles
Oklahoma House of Representatives, District 51

A.G. Opinion
Page 2

ordinance in question “is found to be unreasonable, arbitrary, or to constitute an unequal exercise of police power.” Garrett, 1979 OK 60, ¶¶ 4–5, 594 P.2d at 765–66. B.

Prevention of Youth Access to Tobacco Act

Passed by the Oklahoma Legislature in 1994, the Prevention of Youth Access to Tobacco Act (“Act”) aims to reduce tobacco use by youth and young adults in the State of Oklahoma. 1994 Okla. Sess. Laws ch. 137 (now codified at 63 O.S.2021, §§ 1-229.11–229.26). 1 To achieve its intended aim, the Act allows the fining of any person selling tobacco or vapor products to any person under the age of twenty-one or any person buying tobacco or vapor products for any person under the age of twenty-one. 63 O.S.2021, § 1-229.13. Among other educational requirements and access restrictions, the Act also asserts the State’s preemption over tobacco and vapor product regulation. But the Act did reserve the right for “any agency or political subdivision . . . [to] exercis[e] its lawful authority to regulate zoning or land use . . . .” Id. § 1-229.20. This language has been in place for almost thirty years. It should be noted, however, that the Oklahoma judiciary has invalidated municipal ordinances that had the effect of prohibiting conduct which was otherwise lawful. See e.g., 7-Eleven, Inc. v. McClain, 1967 OK 7, 422 P.2d 455 (municipal zoning ordinances prohibiting sale of intoxicating beverages declared void as they encroached on a field of legislation reserved by the State and such conduct is allowed under state law); Fancy’s Entertainment L.L.C. v. City of Enid, 2007 OK CIV APP 112, 171 P.3d 928 (municipal ordinance prohibiting the admittance of underage persons in areas of an establishment conflicted with state law, which generally covered the field, and allowed underaged persons in areas of the establishment designated for a purpose other than selling low point beer). Accordingly, municipalities must tailor their ordinances such that their effect does not prohibit conduct permissible under state law, especially when the state has clearly established a subject as a field it intends to regulate. III.

DISCUSSION
A.

Oklahoma law permits a municipality to adopt a zoning or land use ordinance regarding the location of a business selling tobacco, nicotine, or vapor products.

Your first question inquires about the relationship between section 43-101 of title 11 and section 1-229.20 of title 63, which prohibits municipalities from adopting any “order, ordinance, rule, or regulation concerning the sale, purchase, distribution, advertising, sampling, promotion, display, possession, licensing or taxation of tobacco products, nicotine products or vapor products.” 63 O.S.2021, § 1-229.20. Although the language at the beginning of section 1-229.20 would necessarily prohibit the proposed ordinance, section 1-229.20 includes a key exception: “nothing in this section shall preclude or preempt any agency or political subdivision from exercising its lawful authority to regulate zoning or land use . . . .” Id. (emphasis added). Put simply, section 1-229.20 explicitly preserves municipalities’ zoning authority related to tobacco, nicotine, or vapor products. Accordingly, this office concludes that section 1-229.20 affirms that a municipality may The Act has been amended and recodified since its enactment in 1994. Initially, the Act only applied to tobacco products, and the sale of such products was allowed to persons aged eighteen or older. 1

The Honorable Brad Boles
Oklahoma House of Representatives, District 51

A.G. Opinion
Page 3

enact an ordinance restricting the location of any business engaged in selling tobacco, nicotine, or vapor products based on its lawful authority to regulate zoning or land use. B.

Municipalities have discretion concerning nonconforming uses.

Your second question concerns whether a municipality may terminate a non-confirming business’s “grandfathered-in” status. Specifically, you ask whether a municipality that enacts the proposed ordinance may further provide that a pre-existing, grandfathered-in business would lose its status upon its sale to a new owner. Title 11, section 44-107.1(A) of the Oklahoma Statutes states: “The lawful nonconforming use of a building, structure or premises as such existed at the time of the adoption and recording of any ordinance affecting it, may be continued, although such use does not conform with the provisions of such ordinance.” (Emphasis added.) The plain and ordinary language of section 44-107.1 of title 11 clearly requires a municipality to include a provision to grandfather in existing businesses that are non-conforming. 2 3 Section 44-107.1(A) also provides for a number of avenues to terminate nonconforming uses, including a winding-down period, the designation of facts or circumstances that terminate the right to continue any nonconforming use, and the adoption of a formula or formulas allowing for an amortization of the business’s investment. 4 Notably, the Legislature carved out two exceptions to municipalities’ authority to terminate nonconforming uses. First, section 44-107.1(C) prohibits a municipality from terminating “oil and/or gas activity,” which are lawful nonconforming uses. Second, section 44-107.1(D) proscribes a municipality from terminating a lawfully nonconforming sign “unless such sign is altered in a manner that increases the degree of nonconformity or is abandoned for a period of more than two (2) years.” 11 O.S.2021, § 44-107.1(C–D). However, no municipality can adopt or amend regulations or restrictions that “affect[] the termination of nonconforming uses . . . [without a prior] notice and hearing as provided in Sections 43-104 and 43-105 of Title 11 of the Oklahoma Statutes.” Id. § 44-107.1(B). To comply with 43104, “parties in interest” must be afforded an opportunity to be heard in a public hearing before the “regulation, restriction, or boundary” becomes effective. 11 O.S.2021, § 43-104(A). Notice of the date, time, and place of the hearing must be provided by publication in a “newspaper of general circulation in the municipality” and “include a map of the area to be affected which indicates street names or numbers, streams, or other significant landmarks in the area.” Id. Section 43-105 adds 2 The Court of Civil Appeals considers the grandfather clause as a requirement under section 44-107.1 despite the use of the word “may.” Material Serv. Corp. v. Town of Fitzhugh, 2015 OK CIV APP 13, ¶ 11, 343 P.3d 624, 627.

Section 44-107.1(A), however, also allows a municipality to “terminat[e] . . . lawful nonconforming uses
. . . by designating conditions or circumstances which shall cause such use to cease . . . .” 11 O.S.2021, § 44107.1(A) (emphasis added). 3

If a municipality decides to designate a change in use as a condition or circumstance that would result in the grandfather clause’s expiration, a municipality should be mindful of the Oklahoma Supreme Court’s holding in Triangle Fraternity v. City of Norman ex rel. Norman Bd. of Adjustment, 2002 OK 80, 63 P.3d 1. Fearing arbitrary decision-making by municipalities, the Triangle Fraternity court held a property’s use must have substantially changed or be of such a character that would change the neighborhood. Id. ¶ 14, 63 P.3d at 6. Whether any property’s use is indeed different is a fact-dependent question that falls outside the scope of an Attorney General opinion. 74 O.S.2021, § 18b(A)(5). 4

The Honorable Brad Boles
Oklahoma House of Representatives, District 51

A.G. Opinion
Page 4

another potential hurdle to a new regulation, restriction, or boundary for land use that arises when either “owners of twenty percent (20%) or more of the area of the lots included in a proposed changed” or “owners of fifty percent (50%) or more of the area of the lots within a three hundred (300) foot radius of the exterior boundary of the territory included in the proposed change” file protests against the proposed change. Id. § 43-105(B)(1–2). When either of these conditions are met, the new provision will “not become effective except by the favorable vote of three-fourths of all the members of the municipal governing body where there are more than seven members . . . and by three-fifths favorable vote where there are seven or less members in the governing body.” Id. § 43-105(B)(2). Turning to the proposed ordinance at issue, section III provides a grandfather clause that reads as follows: “[c]urrent license tobacco/e-cigarette store[s] within 300 feet of any school are exempt from the amendment to the zoning ordinance. If current license tobacco/e-cigarette store is sold then the new owner would no longer be able to use the grandfathering clause to obtain a license.” 5 In other words, the proposed ordinance designates a circumstance which terminates the provided nonconforming use exception—a practice specifically authorized by section 44-107.1(A) of title

11. Consequently, if adopted, it likely complies with section 44-107.1(A) of title 11.
    It is, therefore, the official Opinion of the Attorney General that: 1.

Section 1-229.30 of title 63 of the Oklahoma Statutes does not prohibit a municipality from enacting an ordinance restricting the location of a business engaged in the sale of nicotine or tobacco products.

2.

Subject first to required notice and hearing requirements under sections 43-104 and 43-105 of title 11 of the Oklahoma Statutes, and a grandfather clause under the Oklahoma Municipal Code, a municipality may adopt or amend an ordinance which regulates or restricts the zoning of land within its jurisdiction which causes a business to lose its right to operate by a lawful nonconforming use.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

EVAN J. EDLER
ASSISTANT ATTORNEY GENERAL

5

Tobacco Zoning Ordinance (proposed) (on file with author).