EXHIBIT G
Public Comments
From: OCC Customer Service <[email protected]>
Sent: Monday, January 29, 2024 8:32 AM
To: Mayor <[email protected]>
Subject: FW: Smoke Shops
From: Melanie Zimmerer <[email protected]>
Sent: Saturday, January 27, 2024 2:33 PM
To: OCC Customer Service <[email protected]>
Subject: Smoke Shops
External Email: Use caution with links and attachments
First Name Melanie
Last Name Zimmerer
Email [email protected]
Phone
Number
(559) 285-4651
Subject Smoke Shops
Message Please get rid of smoke shops in our neighborhoods and ones so close to our schools!!!! Many of these places sell items that are illegal !!!! Mayor Dyer, personally told me California is going to make it illegal like other countries…but time is running out for our community and these businesses are creating more horrible addictions!!!
My 37 year old son is addicted to Nitrous Oxide sold in smoke shops. He’s literally killing himself with this addiction! The cans it comes in say “Do Not Inhale” how can they sell this stuff in smoke shops!!! It doesn’t make sense. My son graduated from CalPoly and is a brilliant person…he is an engineer. But he is so addicted…it’s scary. I’m sure there are more people in Fresno county struggling with this addiction! We need this to stop in our community !!! IP Address 108.147.175.139
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BARSTOW LLP
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February 18,2025
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Planning Commission
2600 Fresno Street
Fresno, CA 93721
[email protected]
Re: ID 25-160: Comments on Text Amendment Application No. P23-03410 Submitted on Behalf of the Califomia Smoke Shoos Association Dear Commissioners:
We have been retained by the Califomia Smoke Shops Association("CSSA") regardingText AmendmentApplicationNo. P23-03410^and relatedEnvironmental Finding for Environmental Assessment No. P23-03410, which will amend Sections 15- 2761 and 15-6802of the CitywideDevelopmentCode relating to Tobacco and Vapor Sales, Smoke Shops, and Definitions (the "Proposed Amendment"). We submit these comments on behalf of the CSSA and its members. The Proposed Amendment is currently set to be considered by the Planning Commission at a public hearing on Febmary 19,2025 at 6:00 p.m. (ID 25-160.)
The ProDosed Amendment Would Lead to the Closure of At Least 70 Properiv Licensed Smoke Shops and Impose Disparate Obligations on the Remaining Shops
As you are aware, the Proposed Amendment will require new and existing smoke shops to obtain a ConditionalUse Permit ("CUP") to continue operating their businesses. Although there are approximately119 smoke shops in the Fresno area, the Proposed Amendmentlimits the number of available CUPs tojust 49 (7 in each City CouncilDistrict).The imposedreductionvvill necessarilyforce numeroussmokeshop businesses to permanently shutter their doors and lay off any employees. In addition, the CUPs carry additional duties and requirementsthat are not reasonablyrelated to the use of property for which the CUP is required, including landscaping,lighting, litter and graffiti management, as well as vending machine prohibitions, and requirements for video surveillance,signage,window glazing,loitering, and training. In eachofthese cases, the Proposed Amendment directly targets CSSA members while ignoring businesses, including convenience stores, liquor stores and grocery stores that also similar products as well as alcohol.
The proposed retroactive application of a law targeted directly at one group of properly and fully licensed operating businesses violates the Fifth Amendment of the United States Constitution, which provides that no person shall be "deprived of life. ^In some contexts,the ProposedAmendmentis also identifiedas Text Amendment Application No. P24-02419.
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February 18,2025
liberty, or property, without due processof law; nor shall private property be taken for public use, without just compensation" (U.S. Const., amend. V), and the California Constitution, which provides that "[pjrivate property may be taken or damaged for a public use and only whenjust compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner."(Cal. Const., art. I, § 19.) The Proposed Amendment Would Exact a Regulatory Taking of at Least 70 Smoke Shoos Triggering Millions of Dollars in Compensation to the Smoke Shop Owners
The Proposed Amendment imposes significant restrictions on new and, more critically,existing smoke shops. These includethe requirementfor a CUP and Business License, limitations on the numberofpermits available,and the impositionof strict and often unrelated operationalconditions. Critically, the Proposed Amended applies the new rules retroactively to existing businesses who currently operatedlawfiillyimder previously secured planningapproval and licensure. Indeed, if passed, the Proposed Amendment would target at least 70 operating smoke shops, depriving their owners (and employees)ofthe investment-backedexpectations in their properly permitted and licensed businesses.
Under the Fifth Amendment, a regulatory taking is an unreasonable exerciseof a public entity's police power thateliminatesor diminishesthe value of propertyor interferes with a person's investment-backedexpectations withoutjust compensation.
If passed, the Proposed Amendmentwould force at least 70 smoke shop businessesin the City to permanentlyclose theirdoors. As to those that remain open, theProposed Amendment imposes various unreasonable operational requirements, including landscaping,lighting,litterand graffiti,vendingmachines,videosurveillance,signage, window glazing, loitering, and training requirements.
Put simply, the Proposed Amendment interferes with the investment-backed expectations of legally licensed and permitted smoke shops that currently comply with and satisfy state and local laws and regulations. Indeed, many law-abiding, licensed smoke shop owners will be forced to suspend operations indefinitely regardless of compliance with the broad requirements and restrictions in the Proposed Amendment.
Certainly collectively, and in many cases, individually, these restrictions constitute a regulatory taking by depriving smoke shop business ownersof their ability to continue operating their businesses. Such a taking requires the City ofFresno to pay each and every smoke shop owner Just compensation. This compensation would likely cost Fresno taxpayers tens of millions of dollars.
Supporters of the Proposed Amendment claim it is an exercise of the City's police power intended to eliminate unlicensed smoke shops, address other alleged unlawful activity/violations by some smoke shops, and oAer alleged activities the supporters attribute to third persons near the smoke shops. But in so doing, the Proposed Amendment ignores other similarly situated businesses with similar potential problems. The Proposed Amendment would impose requirements, restrictions, and I
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City of Fresno
February 18,2025
harsh penalties on smokeshops, but not other business that sell similar products and attract similarcustomers,including alcohol, such asconveniencestores, liquor stores, gas stations,grocerystores.Additionally,the ProposedAmendmentignorescannabis dispensaries, thereby (perhaps intentionally) giving those dispensaries an unfair economicadvantage.And althoughthe State (and byextensionthe City) does have an interestin regulatingthe smoke shopindustry,such interest is alreadyachievedunder current State laws and regulations. The Proposed Amendment is therefore not reasonablynecessaryto effectthatinterestandservesonlyas an unjusttaking.
The Proposed Amendment Would Deprive at least 70 Smoke Shop Owners of their Rights without Due Process and in Violation of the Businessmen's Equal Protection Rights
Not onlydoes the ProposedAmendmentviolateFifthAmendmentprotection, but the ProposedAmendmentalso implicatesrights under theFourteenthAmendment and the Ciifomia Constitution.The FourteenthAmendment of the United States ConstitutionprohibitsStates from deprivingany person of life, liberty, or property withoutdueprocessof laworfrom denyinganypersonwithinitsjurisdictiontheequd protectionof the laws. Likewise,the CaliforniaConstitutionprohibitsthe denial of equal protection.The conceptof equal protectionof the laws compelsrecognitionof thepropositionthatpersonssimilarlysituatedwithrespectto thelegitimatepurposeof the law receive like treatment.
Here, the Proposed Amendment treats similarly situated businesses and businesspropertiesdifferently.The ProposedAmendmentdeprivesat least 70 shop owners of their business without anyindividualizedprocess at all. It does not seek to separate"bad actors"from"goodactors"throughanytype ofprocess.It doesnot afford a hearing.It simplyeliminatesbusinesses.Moreover,it doesso bylimitingthe number ofsmokeshopsperCityCouncilDistrict,withoutregardtohow many legitimateshops are in each District.
Under the equal protection clause of the U.S. Constitution and California Constitution,if a law, ordinance,or regulationaffectstwo or moresimilarlysituated groups in unequal manners, such legislation must be rationally related to the realisticallyconceivable,legitimatelegislativepurpose.But insteadof regulatingthe sale of tobacco for all businesses located within the City of Fresno, the Proposed Amendment arbitrarily targets smoke shops, which are only a small subset of the businesses that sell tobacco products. Owners of grocery stores, convenience stores, gasstations,liquorstores,andcannabisdispensariesarefreeto continuesellingtobacco and tobacco paraphernaliawithout obtaining a CUP or complyingwith the conditions imposedfor the issuanceof a CUP. Smokeshops are singled out andprecludedfrom continuingtheirbusinesswithoutfirstobtaininga CUP. Notably,thereare not enough permits for all currently licensed and permitted smoke shops to secure approvals, resultingin forced closure of at least 70 smoke shopscurrentlyexisting in the City of Fresno. Since the City ofFresnoprovidesno rational basis for treating smoke shops different from grocery stores,conveniencestores, gas stations, liquor stores, cannabis 1^
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February 18, 2025
dispensaries, and others who sell tobacco products, the Proposed Amendment violates the due process and equal protection clauses of the United States and California Constitutions.
The Proposed Amendment Improperlv Weanonizes CEOA Against Independent Businessmen Rather than Use it Properly as a Develonment Tool Theprimarypurposeof theCaliforniaEnvironmentalQualityAct("CEQA")is to inform decision makers and the public about the potential, significant effect of proposed pxo]QcXs, attempt tomitigatethose impacts,reduce impactsand disclose the basis of approvals of projects. As the highlighted language makes clear, each of these goals isprospective.CEQA is intendedtojudge thefuture impactsof aprojectpriorto the decision maker approving the project. The Proposed Amendment departs from these goals entirely.In so doing, it turns CEQA into a blunt instrumentretroactively aimedat uses alreadyapprovedunderthe GeneralPlan and operatingconsistentlywiti the plan. But CEQA is not aweaponagainstdisapprovedactivities.It isproperlyused as tool to controlpotentialdevelopmentand mitigateenvironmentalimpacts.
Moreover, the proposed use of a CUP is improper. A CUP regulates land, not individuals.Conditionson approvalmust reasonablyrelate to the use ofpropertyfor which the conditional use permit is requested. The Proposed Amendment is aimed at individual smoke shop owners- its goal it to put them outof business- rather than the land on which they run their businesses.
Finally,smokeshop ownershave a vestedrightto continueusingtheirproperty inconformancewith existingrules and regulations."The law recognizesa vestedright to continue a use which existed at the time zoning regulationschanged and the use thereafterbecame a nonconforminguse." If the Proposed Amendment is adopted, business owners' existing, conforminguses will suddenly become "nonconforming" uses. Rather than using the CUP-process to allow for business owners to continue their operationsas previouslyconforminguses, the CUP requirementsinstead are being weaponizedto declare past conforminguses as nonconforminguses for an improper exercise of police power by the City.
We appreciate the opportunity to submit these comments and appreciate your consideration.
yours,
Ella Mobefg"
Garrett J. Wade
McCormick Barstow LLP
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