Jonathan Bilyk Jul. 1, 2015, 12:02pm

A federal judge has struck down a challenge by a group of Chicago service station and convenience store owners to a city ordinance intended to tamp down the marketing of flavored tobacco products to school children, but which the station operators said amounted to a de facto ban on the sale of menthol cigarettes almost everywhere in Chicago.

On Monday, June 29, U.S. District Judge Matthew F. Kennelly dismissed with prejudice litigation brought against the city by the Independents Gas & Service Stations Associations and Quick Pick Food Mart over the ordinance. Approved in 2013, the rule prohibits any retailer, other than a tobacco store, located within 500 feet of any elementary, middle or high school from selling flavored tobacco products.

The ordinance had previously established a zone of 100 feet in which such sales were banned.

The plaintiff association, which is also known as I-GAS, said it represents “independent small business owners and operators of gasoline service stations holding tobacco licenses in the city of Chicago.”

Convenience store operator Quick Pick Food Mart joined the litigation later last fall, and the case was reassigned to Kennelly’s court.

The plaintiffs argued the city’s ordinance was both unconstitutional and preempted by the Family Smoking Prevention and Tobacco Control Act, which the plaintiffs said delegated regulation of tobacco to the federal Food and Drug Administration.

Since Chicago’s ordinance specifically addresses the sale of menthol cigarettes, I-GAS contended the ordinance exceeded the city’s authority under the federal law to regulate such products.

I-GAS also argued the ordinance would harm businesses through the lack of a grandfathering clause, which would not allow a store selling such products to continue to sell such products should a school open or expand within 500 feet of an existing store. Nor does the ordinance specify what kind of structure would be defined as a “school” for the purposes of the ordinance.

Kennelly, however, said the plaintiffs’ arguments do not hold up well enough to sustain a challenge to the city’s authority to regulate such sales.

He noted the federal law includes provisions to grant states and local governments a “robust role” in regulating the sales of tobacco products.

“Because flavored tobacco products may be sold within the city if the ordinance’s requirements are met, the law does not constitute a prohibition in the meaning of the FSPTCA,” Kennelly wrote.

Kennelly said he also found the plaintiffs’ arguments regarding the grandfather clause or confusion over where stores might sell the cigarettes to be “unpersuasive.”

He acknowledged store operators may experience uncertainty over whether “the ordinance will apply to it in the future.”

“This uncertainty, however, is not caused by any vagueness in the ordinance, but by the fact that the future is unknowable – a feature that applies to all laws,” the judge said.

He also brushed aside their concerns over the definition of the term “school” for the purposes of the ordinance.

“The word ‘school’ is a simple term that is easily understood by a person of ordinary intelligence,” Kennelly wrote. “The fact that it could have been defined with greater precision does not amount to unconstitutional vagueness.”

And the judge also rejected the plaintiffs’ contention the ordinance violates the stores’ “vested right to sell flavored tobacco” as a licensed tobacco retailer.

While courts have not “addressed whether tobacco licenses create vested rights,” Kennelly said nothing in Chicago’s ordinance code would indicate such licenses are any different from other conditional business licenses.

“The code does not suggest that a tobacco license, once granted, cannot be altered or revoked by legislation,” Kennelly said. “To the contrary, the code provides that ‘any retail tobacco dealer’s license … shall be revocable by the mayor upon violation’ (of local or state law.)

“That suggests that tobacco licenses are conditional and, like liquor licenses, ‘a personal privilege to pursue a business peculiarly subject to police regulation and control.’”

The plaintiffs were represented in the action by attorney David R. Sweis, of the Sweis Law Firm, of Oak Brook.

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