Five Bedford businesses are challenging a zoning law that bans the sale of electronic cigarettes.The businesses, operating mostly as gas stations and minimarts, sued the town Dec. 6 in Westchester Supreme Court, demanding that the zoning law be declared invalid and that the town stop enforcing it.
The law is not valid, the complaint states, “because it is directed at the perceived social evil of electronic nicotine delivery devices rather than the regulation of land use.”
“We strongly believe that our law is permissible,” Chris Burdick, the town supervisor, responded in an email, “and we will defend it vigorously.”
Bedford enacted the law in May. No business may own, manage or operate a vape shop or sell electronic nicotine devices outside of the roadside business zoning district.
Banned devices include hookahs, vaping paraphernalia and substances used in the devices, such as vapors, c-liquids and marijuana derivatives.
Enforcement began Nov. 7, six months after the law was enacted.
The businesses that sued are:
- Bedford Village Service Station of Westchester, Inc., 848 S. Bedford Road.
- Katonah Gas & Auto Service Inc., 80 Bedford Road.
- Katonah Service Station Inc., 105 Bedford Road.
- Maruti 7 Corp., 7 Babbitt Road.
- Preferred Gas Mart Inc., 9 Haines Road.
Frank Disiena is CEO of Bedford Village Service Station and the two Katonah businesses, according to New York Department of State records. Rohit B. Patel manages Maruti 7 and Alexis T. Fernandez is Preferred Gas Mart’s president, according to court filings.
Patel and Fernandez state in affidavits that they will suffer irreparable harm – fines up to $2,500 a day for each violation and up to six months imprisonment – if the law is not invalidated.
Their attorney, Lee A. Pollock of White Plains, argues that zoning laws are meant for regulating land use, such as the sizes of structures and the types of buildings that may be placed in residential, industrial and commercial locations. Zoning is not meant for regulating what is done in businesses by those who occupy the buildings.
He cited a case in which the town of Hempstead banned check-cashing businesses. The rationale, according to a 2013 state Court of Appeals ruling, was to “eliminate predatory and exploitative finance enterprises from commercial areas.”
“Zoning power is not a general police power,” the court ruled in striking the Hempstead law, “but a power to regulate land use.”
The court also cited a 1975 ruling that held, “a zoning board is charged with the regulation of land use and not with the person who owns or occupies it.”
Bedford’s attorney, Joel H. Sachs of Keane & Beane PC in White Plains, countered that case law allows local governments to regulate the use of buildings “to protect the public health, safety, morals and general welfare of the community.”
“Zoning is the primary way in which governments shape a community’s land use,” Sachs said, and has been used to restrict the locations of liquor stores, gun shops, cabarets and adult entertainment establishments.
He traced the concept to a 1926 U.S. Supreme Court decision. “A nuisance may be merely a right thing in the wrong place,” the court ruled, “like a pig in the parlor instead of the barnyard.”
Sachs said courts have routinely upheld municipal regulations that prohibit the sale of products for tobacco use, “the single, largest preventable cause of disease and death in the United States.”
In this case, Bedford designed a law to make tobacco products less accessible to young people by controlling the locations where they can be purchased.
“The court must weigh the negative health impacts of this product,” Sachs said, “against the profit motive of plaintiffs.”