Proposed Local Law 5-2024 – Smoke Shops

 September 11, 2024

LOCAL LAW NO. 5 OF 2024 TO AMEND THE TOWN OF MENDON ZONING LEGISLATION TO ADDRESS ZONING FOR SMOKE SHOPS

BE IT ENACTED, by the Town Board of the Town of Mendon, Monroe County, State of New York, as follows:

Section I.         Authorization

The adoption of this Local Law is in accordance with Section 10 of New York Municipal Home Rule Law. It is the intent of this Local Law to supersede any statutes or regulations which may be inconsistent with the provisions herein, all pursuant to the Town’s municipal home rule powers under Municipal Home Rule Law.

Section II.        Title and Purpose

This law shall be known as and may be cited as Local Law No. 5 of 2024 “to Amend the Town of Mendon Zoning Legislation to Address Zoning for Smoke Shops.” Its purpose includes to define and limit the areas in Town where Smoke Shops are permitted, and to advance the goals of New York State’s tobacco use prevention and control program.

Section III.       Legislative Intent and Finding

The Mendon Town Board finds that the zoning legislation of the Town of Mendon should specifically address Smoke Shops, so that the areas of Town in which they are permitted are clearly defined and limited in order to protect the health, safety and welfare of those in the Town.  Moreover, consistent with advancing the goals of New York State’s tobacco use prevention and control program, the Mendon Town Board finds that:

  1. Tobacco is a leading cause of preventable death and disease in New York State;
  2. Adolescent brains are uniquely vulnerable to the effects of nicotine and the formation of nicotine dependence;
  3. Tobacco and vapor/e-cigarette retail outlet density is associated with high rates of youth and adult tobacco use, as well as higher rates of initiation of nicotine use among adolescents and young adults;
  4. Tobacco and vapor products usage is linked to an increased incident in cancers and disease and therefore is harmful to the public health; and
  5. Restricting the sale of tobacco and vapor/e-cigarette products to certain zoning districts and reducing the concentration of sale locations will reduce the availability of tobacco and nicotine to residents, including adolescents, improving public health and lessening the incidence of various cancers and diseases.

Section IV.      Substantive Legislation.

The Town of Mendon’s local zoning legislation, including as implemented by way of the Code of the Town Mendon, NY (also referred to herein as the “Code” or the “Mendon Town Code”), is hereby amended as set forth below:

Chapter 5, Section 5-4 (“General Definitions”), of the Code of the Town of Mendon shall be revised to add the definition of “Smoke Shop,” as follows:

SMOKE SHOP:

Any business, retail shop or establishment which offers for sale or consideration, as a substantial or significant portion of its business, merchandise and/or stock-in-trade, whether intended for smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into the body, the following (“Smoke Shop Products”): a) tobacco, tobacco products, or tobacco/smoking paraphernalia, including but not limited to cigarettes, cigars, pipes, hookahs, etc. and/or b) electronic cigarettes (e.g., electronic nicotine delivery systems), vape pens, vapors, e-liquids, e-vaporizers, or other like substances, and/or c) CBD (cannabidiol) products (not including products containing THC), including but not limited to CBD gummies and/or CBD oil, for example. Smoke Shops do not include cannabis retail dispensaries (which are not permitted in the Town of Mendon).

Factors of Significance: For purposes of this definition, “substantial or significant” may be determined using the following considerations:

  1. The amount of sales floor area used for the sale of Smoke Shop Products, including as compared to the total sales floor area used for the sale of other products; and/or
  2. The amount of Smoke Shop Products accessible to customers, generally, including as compared to other products accessible to customers; and/or
  3. Revenues derived from Smoke Shop Products, including as compared to total revenues; and/or
  4. Advertising/marketing devoted to Smoke Shop Products, including as compared to advertising/marketing otherwise, and including the name of the business; and/or
  5. The use of the establishment for Smoke Shop Products, including as compared to total use thereof.

Conclusive Determination: Notwithstanding the above considerations (which above considerations may nonetheless be utilized even where the below does not apply), the following shall be conclusive in determining a “substantial or significant portion:”

  1. Thirty-three percent (33%) or more of the sales floor area is used for the sale of Smoke Shop Products, and/or
  2. Thirty-three percent (33%) or more of the establishment’s stock-in-trade comprises Smoke Shop Products, and/or
  3. Thirty-three percent (33%) or more of the establishment’s gross income is derived from Smoke Shop Products; and/or
  4. Thirty-three percent (33%) or more of the establishment’s advertising/marketing is devoted to Smoke Shop Products, and/or the public-facing name of the business generally indicates that it is a Smoke Shop.

Grocery/Supermarket/Convenience Stores: Any grocery store, supermarket, convenience store or similar retail use that sells conventional cigars, cigarettes or tobacco as ancillary sales (i.e., Smoke Shop Products are not a “substantial or significant” portion of business) shall not be defined as a Smoke Shop.

Section 260-17[D] of the Mendon Town Code (specially permitted uses in the Business District) shall be amended by adding a new subsection (17), which shall read as follows:

(17) Smoke Shops.

 Section 260-18[D] of the Mendon Town Code (specially permitted uses in the Industrial District) shall be amended by adding a new subsection (8), which shall read as follows:

(8) Smoke Shops.

Article VII (“Special Use Permits”) of the Mendon Town Code shall be amended by adding new subsection “260-48.1,” to be entitled “Smoke Shops,” which shall read as follows:

Section 260-48.1 Smoke Shops.

A special use permit shall be required for all Smoke Shops, the same of which are only permitted in the Business and Industrial Districts in Town (with a special use permit). The following additional conditions and criteria must be met relative to the issuance of a special use permit for Smoke Shops.

  1. Buffer to Other Uses. Smoke Shops shall be established at least 500 feet from any a) school or school grounds, b) park or playground, c) church / house of worship, d) residence, e) public library, or f) business which is primarily focused on providing services/products to children, including, for example, childcare facilities or recreational facilities with a significant youth component. Such 500-foot setback shall be measured from the Smoke Shop to the nearest lot line of the buffered use. The measurement from the Smoke Shop shall be from the closest portion of the building or portion thereof comprising the Smoke Shop and/or the closest exterior portions of the Smoke Shop where actual sales might take place (such as outdoor sales locations or a drive through window).
  2. Buffer to Other Smoke Shops. Smoke Shops shall be established at least 500 feet from any other Smoke Shop. The measurement for the 500-foot setback herein shall be from the closest portion of the building or portion thereof comprising each Smoke Shop and/or the closest exterior portions of each Smoke Shop where actual sales might take place (such as outdoor sales locations or a drive through window).
  3. Compliance with Law. All Smoke Shops within the Town of Mendon shall comply with applicable law, including but not limited to New York State laws, rules, and regulations, in addition to those provisions contained in the Town of Mendon Code.
  4. Pre-existing Smoke Shops. Consistent with and subject to Article VI hereof, the provisions of this local law shall not apply to Smoke Shops which legally existed prior to enactment of this local law.

Section V.       Validity and Severability

If any clause, sentence, paragraph, subdivision, or part of this Local Law or the application thereof to any person, firm or corporation, or circumstance, shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, or part of this Local Law or in its application to the person, individual, firm or corporation or circumstance, directly involved in the controversy in which such judgment or order shall be rendered.

Section VI.      Repeal, Amendment and Supersession of Other Laws

All other Ordinances or Local Laws of the Town of Mendon which are in conflict with the provisions of this Local Law are hereby superseded or repealed to the extent necessary to give this Local Law force and effect during its effective period, including but not limited to the repeal and supersession of the moratorium relative to Smoke Shops in the Town of Mendon that was implemented by way of Local Law No. 1-2024 (including any extension thereof such as its extension by way of subsequent amendment to said Local Law).

Section VII.     Effective Date

This Local Law, after its adoption by the Town Board of the Town of Mendon, shall take effect immediately upon its filing with the Secretary of State of NY.