February5 , 2023

Prior Lake smoke shop sues city over ban on flavored vape products


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The City of Prior Lake is facing a lawsuit brought by a local business over the city’s ban on the sale of flavored vaping products.

The city’s ordinance, adopted in April, bans the sale of most flavored vaping products with a stated purpose of protecting youth and young adults from the harms of smoking.

Prior Lake Tobacco & Vape, which opened in November 2020, brought the lawsuit days before the city’s ordinance took effect in August. The lawsuit alleges the store will be forced to go out of business if the ordinance is upheld.

In a court memo, V. John Ella, the store’s attorney, argues the city’s ordinance had singled-out Prior Lake Tobacco & Vape, the city’s only adult-only smoke shop.

Ella argues the ordinance should’ve included an exemption for stores that do not allow customers under 21-years-old, such as Prior Lake Tobacco & Vape.

He draws a parallel to liquor stores, which may include flavored liquors that appeal to youth, but are not subject to similar regulations.

In the memo, Ella claims the city’s ban on flavored vaping products places unfair blame and punishment on the store’s owner, despite there being no history of sales to minors.

Ella also argues the ban results in the store being left with inventory that cannot be returned to wholesalers, despite taxes already being paid to the state on the now-banned products.

Ella did not respond to requests for comment before press time Thursday.

City response

The City of Prior Lake, according to court documents, is asking the court to dismiss three of the four counts brought in the case.

The second count in the lawsuit, which the city has not yet asked the court to dismiss, relates to the store’s claim that the city significantly diminished the value of the business.

Monte Mills, the city’s attorney, declined to comment.

While Ella argues the ordinance violates the Equal Protection Clause of the Minnesota Constitution, court documents show the city’s attorney argues the store fails to show a violation of its equal-protection rights.

In a motion to dismiss, the city argues the ordinance does relate to a legitimate government interest because it’s stated purpose is to “enforce and further existing laws of the state and protect youth and young adults from the serious health effects associated with the use and initiation of tobacco products.”

Mills concludes, “Both of which are goals that the city can legitimately attempt to achieve.”

In a Sept. 14 memo, Mills asked the store’s claim against the city be dismissed, alongside the corresponding claims for injunctive relief, which could prevent the city’s ordinance from being enforced.

The city’s motion to dismiss is scheduled to be heard in Scott County District Court on Tuesday, Oct. 12 at 9:30 a.m.