Jeramey Jannene
Eyes on Milwaukee

City Seeks To Limit New Vape Shops

But questions abound on the legality and strategy of any bans or limits.

By - Feb 1st, 2023 02:07 pm
1229-1231 E. Brady St. in 2020. Photo by Jeramey Jannene.

1229-1231 E. Brady St. in 2020. Photo by Jeramey Jannene.

Members of the Milwaukee Common Council would like to slow or halt the proliferation of electronic cigarette stores.

But as a hearing Tuesday revealed, there may be hurdles to jump in this effort.

First up on the action list is a proposed six-month moratorium on approving occupancy permits for businesses that would sell e-cigarettes (the use of which is commonly called “vaping).

“The explosion of vape stores, particularly when concentrated in a small, geographic area, may have negative impacts on health, safety and welfare of residents,” said Alderman Jonathan Brostoff, the moratorium’s lead sponsor. “We have to get control of this and prevent further harm.”

He said he would like to see a larger regulatory framework developed, including potentially restricting the store’s approval near schools or other places that children frequent. He cited the JUUL Labs cases, where the company agreed to stop making specific flavored tobacco cartridges following an FDA investigation and, as a result of a separate lawsuit, restricted its marketing that may have appealed to children.

“This gives an opportunity to take a break, look at the situation as a whole and make sure we are doing right by our community,” said Brostoff.

But Department of Neighborhood Services Commissioner Erica Roberts, whose department approves and enforces occupancy permits, expressed concern with the proposal.

She questioned the overall legality, including what to do about businesses under construction that have yet to apply for an occupancy permit (one of the last steps before opening), and what to do about businesses like convenience stores and gas stations that sell e-cigarettes alongside other permitted products.

“I fear that there may be some legal implications to pulling the rug out from businesses that may be under development,” said Roberts.

Roberts said the city could approve an occupancy permit on the basis that the business was poised to comply, then later learn that the business started selling e-cigarettes and have limited enforcement power. The majority of her department’s enforcement measures work on a complaint basis.

Deputy City Attorney Todd Farris said he has worked with Brostoff and his predecessor Nik Kovac, now the budget director, on the matter. He said his office didn’t think a licensing framework would meet the council’s desire, but that using the zoning code could.

“We concluded the city does have zoning power to regulate e-cigarette establishments,” said the attorney. He said moratoriums have been upheld if they are limited in length and scope. A potential outcome is that e-cigarette stores would require a special use permit from the Board of Zoning Appeals. A prior moratorium was instituted on cash-for-gold stores, with a licensing and zoning framework adopted.

“I don’t want a moratorium. I want this removed from my district period,” said Ald. Russell W. Stamper, II.

But Stamper was informed by other council members and city staffers that this wasn’t possible, given the overall legality of the e-cigarettes. Brostoff asked for his support for the moratorium as a pathway to addressing the issue.

Fire Chief Aaron Lipski would also like the city to limit or eliminate vape shops. “We have an obvious interest in reducing things that start other things on fire,” said the chief. He said the devices were highly unregulated. “There is no safe version of this. It does not exist.”

The chief also noted that e-cigarettes are marketed to communities of color and children. “That is well-documented,” said the American Lung Association member. “You don’t have to be a rocket scientist to figure out what they’re trying to do.”

The committee ultimately spent more than an hour on the proposal, poking and prodding at the various facets.

“This comes forward with a noble intent, but it’s not really ready for prime time,” said Ald. Robert Bauman.

“The fact that we had to have a non-attorney tell us how to tweak this is infuriating,” said Ald. Scott Spiker of Roberts’ comments.

“I think this is well thought out. It’s a moratorium,” said Alderwoman Marina Dimitrijevic in support. She said the extent of the issue was made clear when Brostoff showed the proliferation of the stores on Brady Street in his district.

Committee chair Michael Murphy wants to see all of the looming questions addressed before the full council votes on the moratorium at its Feb. 7 meeting, “so… we have all of our ducks in order… I think there should be coordination between the Department of Neighborhood Services and the City Attorney.”

The committee unanimously backed the measure, but Murphy made it clear his support was conditioned on things being addressed by the time the full council votes.

Ald. Mark Borkowski, who was not present at the meeting, is a co-sponsor of the measure with Brostoff and Dimitirjevic.

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Related Legislation: File 221499

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