A federal judge has dismissed a lawsuit challenging Fresno’s new smoke shop ordinance.

The ordinance, passed in April, limits where smoke shops can operate, caps how many can stay open and requires new permits for existing businesses. Since it took effect, city officials say 100 smoke shops have been inspected and 26 have closed.

“All of that was refuted by Judge Sheriff in this case, whom I applaud for making these rulings,” said attorney Andrew Janz.

The suit, filed by the California Smoke Shop Association, argued the ordinance violated the association’s constitutional rights. An attorney for the group says parts of the legal fight remain unresolved.

“We also argued that the ordinance violated the members of smoke shops due process rights and violated the equal protection clause. In fact, only two of those issues were actually litigated in the current case. That was the equal protection and due process issues. So the question of whether or not the ordinance unconstitutionally takes our members’ businesses and property is still to be decided. Unfortunately, we took our best shot, but the district court here in Fresno disagreed on a preliminary basis,” said Shane Smith, attorney for the California Smoke Shop Association.

The city contends the concentration of smoke shops threatens public health and safety, noting some are located near schools, parks and community centers. Fresno City Councilmember Miguel Arias, who represents District 3, said there were once as many as 18 smoke shops in his district.

“Inspections by our court enforcement officers have uncovered widespread illegal activity, including the sale of flavored tobacco, as you’ve heard, cannabis, narcotics, illegal gambling operations, and even weapons in some cases,” said Councilmember Nelson Esparza.

In one instance, city officials say a 16-year-old was caught selling smoke products at a shop on Blackstone Avenue; the minimum age to sell controlled substances is 21.

The city says those enforcement findings helped persuade the judge to reject the association’s claims. “The judge in all of these instances has to agree to the dismissal, which he did, which is not surprising because of the rulings that he’s made in the past, statements that he’s made in the past that the city of Fresno does indeed have extreme policing powers to regulate this type of industry,” Janz said.

City data shows 80% of smoke shops cited for selling illegal products continued to do so after re-inspection. Twenty-six shops voluntarily closed after inspection, and others have until December of next year to shut down. But officials say operators still have a path to remain open if they apply for a conditional use permit.

“So I want to remind those in the smoke shop industry, the windows open for you to apply for a conditional use permit, but the likelihood of you receiving an award if you continuously violate state law and city ordinance and continue to employ these tactics that endanger the public health and safety of our city, you’re likely not going to be awarded a license,” Arias said.

The court dismissed the case without prejudice, meaning new lawsuits could be filed. “So, what the agreement between the city and the smoke shop association has done is allow individual members to refile a lawsuit in the future if their business is taken,” Smith said. Asked whether the association plans to file again, Smith said not at this time.

The city has also been scrutinizing how much the litigation would cost. According to the city, it spent $1,000 in legal funds. Inspections were also conducted at large retailers such as Walmart and Costco — the city says none were found in violation.

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This article was adapted from an original report published on kmph.com. All rights belong to the original publisher.