A judge granted a temporary stay of enforcement on the ordinance, as larger legal issues play out.
Washington County’s ban on flavored tobacco products is again on hold after a judge issued an injunction earlier this week.
Circuit Court Judge Andrew Erwin issued an opinion Tuesday, July 5, stating that the county cannot immediately require stores to stop stocking their shelves with flavored tobacco products, since the county had no immediate plans to enforce the ordinance.
It’s just the latest legal development in this saga, which began last fall after Washington County decided to impose an outright ban on flavored tobacco and nicotine products and advertisements in the county via Ordinance 878.
Multiple lawsuits were filed after county commissioners voted 3-2 to adopt the ordinance.
The first, brought by Plaid Pantry chief executive officer Jonathan Polonsky, argues that the ballot measure brought before voters was invalid. The plaintiff earlier this year gathered enough signatures to refer the question to voters, which immediately put the ordinance on hold.
Nearly 76% of voters chose not to repeal to the ordinance banning flavored tobacco products, election results show. However, Polonsky’s attorneys said the ballot language was confusing and therefore unconstitutional.
They argued that the so-called double negative — where a “yes” vote was in favor of a repeal, while a “no” vote was in favor of keeping the ordinance in place — could have confused voters into selecting the option that was contrary to their intended vote.
Judge Theodore Sims ruled that the complaint should be dismissed, but it’s now been appealed to the Oregon Court of Appeals.
A separate lawsuit brought in federal court argues a similar issue of whether the ballot language is valid.
This latest development stems from a third case, brought against the county by a group of businesses — all of them tobacco lounges for adults — who say their revenues were seriously hurt by the county’s ban.
They argue, in a lawsuit filed in February, that the ordinance violates existing Oregon laws and would harm their businesses and their customers if it’s allowed to go into effect. They also question how the county’s ban can apply to retailers within city limits.
Unlike traditional retail stores, where children can enter and purchase goods, or at the very least be influenced by marketing for adult products, the plaintiffs in this case state that their businesses are only open to adults who are 21 or older.
The county argues that it was acting in the public’s interest by banning these products — which public health experts say target children to get hooked on nicotine — and that the plaintiffs’ concerns are moot since the ordinance wasn’t even being enforced yet by the county.
But Erwin sided with the plaintiffs, concluding that since the ordinance isn’t being enforced yet anyway, the county doesn’t have a convincing argument for why it should remain in effect. He granted a temporary injunction — effectively suspending the ordinance — while the larger issues are debated in court.
“(The) defendant concedes they have no plans to further the public’s interest as they do not anticipate enforcing the ordinance in the foreseeable future,” Erwin’s opinion states, adding that the “defendant’s assurances that they do not currently intend to enforce the ordinance is arbitrary and fleeting at best and is not binding.”
This likely isn’t the final word on the lawsuit, and the judge’s opinion does not strike down the ordinance. Instead, it means that the county cannot bar storeowners from selling these goods right now.
“If (the) defendant’s assurances are truly genuine, then a preliminary injunction does nothing more than enforce the status quo,” Erwin’s letter states.
Without the temporary injunction, storeowners could have faced fines if they continued selling flavored tobacco, including flavored vape pen cartridges and menthol products.
Based on the wording of the ordinance, a violation would include a $435 presumptive fine, and individuals could be charged up to $2,000 for each day of noncompliance, while corporations would be charged up to $4,000.
Troy Shinn – The Times – 2022-07-08
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