Court rules Fresno can move ahead as planned with smoke shop shutdown

A federal judge has denied a preliminary injunction that would have blocked Fresno from implementing its so-called Smoke Shop Ordinance.

Meaning, the city can continue with a plan that will shutter dozens of businesses over the next year.

In a statement Monday, Fresno city attorney Andrew Janz called the Sept. 11 ruling “a win for public safety.”

“All smoke shops will be treated equally,” he said.

“There will be no special treatment for those who seek to be ‘grandfathered in,’ or excluded from the new ordinance.”

What is Fresno’s Smoke Shop Ordinance?

The Smoke Shop Text Amendment went into affect in June and set regulations on an entire class of businesses that had, for years, been operating essentially unregulated.

A loophole in municipal code allowed the highly-visible corner stores to saturate neighborhoods and exist next to so-called sensitive areas like schools and parks.

And that was a problem because, according to the city, the shops have become hubs for illegal activities.

That includes things like selling to minors, but also gambling, prostitution and marijuana sales, which the city discovered during a crackdown on black-market cannabis it started two years ago under a partnership with the California Attorney General’s office.

The ordinance defines smoke shops based on types (and percentage) of merchandise on the shelves. It then limits the number of those businesses to 49 — seven per council district — and requires each to have a conditional use permit and a business tax license, which can be revoked for any number of reasons.

All existing businesses were given 18 months to come into compliance with the new regulations. They had 180 days to file for an extension for extra time to wind down operations or apply for the needed conditional use permit.

That deadline happens in November.

So far, 10 businesses have filed for those CUPs, according to Janz.

Lawsuit from California Association of Smoke Shops

In May, a group of 28 local smoke shop owners made good on a promise to fight the ordinance by filing suit against the city and council members Miguel Arias, Nelson Esparza, Annalisa Perea and Brandon Vang.

The suit argued that the ordinance violates provisions of the federal and California state constitutions.

The California Association of Smoke Shop also asked the courts for a preliminary injunction to halt any enforcement of the ordinance in the meantime, arguing it “facially violates the Equal Protection Clause.”

A specific provision of the ordinance was also “unconstitutionally vague,” according to the association.

In his 27-page ruling, judge Kirk Sherriff denied the claim, saying the association failed to show it would likely succeed on the merits of its equal protection claims or other claims of constitutional vagueness. Likewise, the group was unable to show a “likelihood of irreparable harm without injunctive relief.”

“Additionally, the public interest is served by the enforcement of the Ordinance,” Sherriff wrote.

“That is, the public has a strong interest in ensuring that laws passed by its legislative body are implemented.”

It unclear if any existing smoke shops have already closed because of the ordinance, though more than a dozen smoke shops have shut down since the city began enhanced enforcement in 2023, according to the city.