Court: Barrington tobacco law 'null and void'

Superior Court judge says statewide legislation needed to raise tobacco purchase age

Posted 8/9/18

A Superior Court judge recently ruled against Barrington's new tobacco ordinance.

Judge Maureen Keough's decision stated that the case law she read did not support Barrington's ordinance, which …

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Court: Barrington tobacco law 'null and void'

Superior Court judge says statewide legislation needed to raise tobacco purchase age

Posted

A Superior Court judge recently ruled against Barrington's new tobacco ordinance.

Judge Maureen Keough's decision stated that the case law she read did not support Barrington's ordinance, which increased the age to purchase tobacco from 18 to 21 and banned the sale of all flavored tobacco products in town.

"I just don't feel in this situation that the legislature has clearly articulated or authorized the cities and towns to enact their own independent regulatory scheme when it comes to the sale of tobacco products," said Judge Keough in her decision. 

But while the Superior Court judge ruled against the town and for the plaintiffs, K&W Automotive and the Ecig Shed, she also urged the Rhode Island General Assembly to address the issue.

"I'm repeating myself, but it cries out for statewide legislation, and I'm struggling to see why the general assembly, although I think they probably have a few reasons, hasn't done so already," she said. "And, I understand why the cities and towns are trying to do backfilling, and I applaud their effort. 

"I just don't know that under the case law I read, the lack of any enabling authority that I could see, that the town has the authority to do so."

Judge Keough's decision renders the town's ordinance null and void, but Barrington Town Council President Michael Carroll said the council plans on appealing the ruling.

"It is a well-reasoned decision with which I, and the other members of the Town Council, respectfully disagree," Mr. Carroll wrote in a recent email. "Because this is really a matter of first impression, we think it is one that the RI Supreme Court should decide."

Judge Keough appeared to reference that idea in her decision.

"I welcome a review up on the seventh floor if that's where it's going," she said. "And, I say that sincerely. There's some (decisions) that I wouldn't mind being told I'm wrong; this would be one of them."

The battle over the tobacco purchase age started more than a year ago in Barrington. 

In June 2017, the town council approved a new ordinance that required an additional license from the town for businesses that sold tobacco products. 

Louis DelSesto, owner of Ecig Shed, filed a lawsuit against the town and in Sept. 2017, members of the council decided to abandon that ordinance and instead focus on a new local law that would ban the sale of flavored tobacco and change the minimum age to purchase tobacco from 18 to 21. 

While some states have already changed the tobacco purchase age to 21, Rhode Island has not. Members of the Barrington Town Council said they felt an obligation to address the issue. Said Mr. Carroll during an earlier interview: "The council is, at all times, trying to balance a variety of interests. We want to support local businesses, but not at the cost of risking the health of young people in town."

Mr. DelSesto argued that the new ordinance would do little to discourage younger people from smoking, but would instead put him out of business. He said people older than 18 and younger than 21 who had been purchasing tobacco products at his store would instead drive to Riverside or Seekonk or Warren. 

Attorney Peter Skwirz, representing Mr. DelSesto and Wendy and Ken Wajda, who own K&W Automotive on County Road, 

filed a lawsuit and sought a temporary restraining order against the ordinance. In February, the court ordered the town to stop enforcing the ordinance. 

Mr. Skwirz argued that the ordinance's primary objective was to "regulate the sale of tobacco and electronic vaporizers," which is a role reserved for the state. 

Mr. Skwirz wrote "we are unable to agree that legislation accomplishing the regulation and control of business can ever be … an appropriate matter for local legislation…"

The town's attorney, Michael Ursillo, argued that the local municipality, by the virtue of the home rule charter, did have the authority to legislate matters of public health and safety. 

"Moreover, Barrington has argued and suggests to this court that because the regulation applies to all citizens and not just businesses, it is clear the primary purpose of the ordinance is not to regulate business," said Judge Keough.

In her decision, the Superior Court judge appeared to support the town council's effort to further restrict the purchase of tobacco, but struggled to find the necessary evidence to support the ordinance itself. 

"It is clear that it (tobacco) presents a health and safety concern for all the citizens of the town, and particularly the young citizens of the town, and I do find from everything I saw that that really was the primary thrust or primary purpose in enacting this particular ordinance," said Judge Keough. 

She later added: "I truly believe… that it is the general assembly as opposed to the local town council that is the appropriate forum for these issues to be debated and decided. This would allow a uniformity of policy statewide which seems to be is far more desirable than patchwork regulation across the state's 39 cities and towns."

Mr. Carroll said that until state legislators act on this issue, the town of Barrington will continue to push for change.

"Justice Keough writes that it is a matter that should be regulated at a state level and that would certainly make things easier. But if the General Assembly won't protect our young people and those of other cities and towns, we have an obligation to do so."

Tobacco ordinance not unique to Barrington

Barrington is not the only town to pass a law changing the minimum age to purchase tobacco. In fact, Superior Court Judge Maureen Keough said in her decision that there are a handful of towns in Rhode Island that have local laws specific to tobacco. Judge Keough said Johnston, Middletown, Central Falls and Providence all have local ordinances regulating the sale of tobacco products.

• In her words: "I say this in support of my position that statewide regulation would more effectively accomplish the task of providing for the safety and well-being of the citizens across the state and certainly would avoid this chaotic regulatory framework that seems to be evolving."

Recruited for lawsuit

Wendy Wajda and her husband Ken own K&W Automotive on County Road, on the same property as the BP gas station. 

Ms. Wajda said her business sells some brands of cigarettes, but hardly a selection that would entice young people.

"I've got one guy who smokes Pall Mall unfiltered — that's the reason we have those. We're not selling to the young kids. We don't have kids coming in here," she said. "I don't sell the flavored wrappers. I don't sell any of that crap. No, we don't sell any of the stuff that attracts the kids. So none of the kids come here for any of that."

Ms. Wajda said she was not sure she wanted to get involved in the lawsuit. She said a lawyer approached her and asked if she would sign on as a plaintiff. '

"I said 'Yeah, that's great, but I'm not paying for it,'" she said, adding that her role in the suit has not cost her any money. 

"They just wanted to put our names on it."

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