Tucson to crack down on smoke shops

Tucson has started the process of placing regulations on new smoke shops in an effort to crack down on the clustering of tobacco retailers in the most vulnerable neighborhoods while increasing enforcement to prevent underage buyers from obtaining nicotine products.

The City Council voted unanimously Tuesday to begin the process of amending the Unified Development Code, which determines zoning throughout the city, to regulate how far away smoke shops can operate from existing tobacco retailers and locations like schools.

Tucson’s zoning code currently classifies smoke shops the same way it does convenience stores, and doesn’t place any regulations on how far away the retailers must operate from other defined uses.

The lax zoning codes have caused a proliferation of smoke shops in vulnerable areas that makes drug paraphernalia readily available while increasing the supply of nicotine products that contributes to the growing use of vaping products among youth, speakers told council members at Tuesday’s meeting.

Tucson is looking to other Arizona cities like Phoenix, Tempe and Avondale, which have varying zoning codes prohibiting tobacco retailers from operating 500 feet to one-fourth a mile from other smoke shops, nightclubs, schools, parks and places of worship.

Tucson became the fifth Arizona city to raise the legal age to purchase tobacco products from 18 to 21 in October 2019 before federal legislation made the same change at the end of the year.

The city ordinance regulating tobacco sales says all retailers must ask for identification from anyone purchasing tobacco products “who appears to be under the age of 30.”

Violations are met with a progressive penalty structure where each subsequent violation results in higher fines and longer license suspensions. But high school students told the council enforcement isn’t happening enough, and that smoke shops’ proximity to schools is encouraging their peers’ nicotine addictions.

Desert View High School Seniors Angélica Martinez and Angela Moreno said their school district seized 25 pounds of vaping products throughout one semester. The students said they see their peers sneaking to the back of classrooms, taking frequent bathroom breaks and even puffing smoke into backpacks to get a nicotine hit.

More than 1 in 10 middle and high school students reported using vaping products within the past 30 days in an online survey conducted between January and May of 2022, according to data front the U.S Food and Drug Administration. More than 14% of high schoolers reported currently using an e-cigarette, and the most common device reported was disposable, flavored vaping devices that are often sold at smoke shops.

“We want to protect ourselves and our peers from the constant and persistent exposure to tobacco paraphernalia,” Moreno told council members. “We want the city to represent us and to be more strict against tobacco retailers looking to profit at the detriment of the youth they actively target.”

The students suggested the city adopt measures to require tobacco retailers to ID everyone regardless of their apparent physical age, keep a log of all ID checks and to schedule more periodic retailer inspections.

While changing the zoning code for smoke shops will be a lengthy process, City Manager Michael Ortega said, “I will commit to ensuring that the enforcement occurs immediately and expeditiously.”

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When Tucson raised the tobacco purchasing age to 21, it did so "with no comparative law at the county, state, or federal level," said Lane Mandle, Ortega's chief of staff. The city raised the price of obtaining a tobacco license in city limits to $300 annually in anticipation of having to fund increased enforcement operations such as routine check-ins. 

But the federal minimum age of sale followed suit with the city just months after the ordinance passed, creating a "consistency of regulation and a partner in enforcement with the FDA," Mandle said, which shifted the focus of the license funds to "retailer education." 

Mandle said staff will return to the council in the next 90 days with more information on preventing underage tobacco purchases. 

Clusters of smoke shops

Jamal Givens, the CEO of Liberty Partnership Kino Neighborhoods Council, a nonprofit combating youth alcohol and drug consumption throughout Tucson’s southside communities, has strategized on ways to decrease youth tobacco use with Ward 5 Council member Richard Fimbres, the Pima County Health Department and Tucson Police Department for seven months before he spoke to City Council Tuesday.

While smoke shops proliferate Tucson’s south side, Givens said their abundance and the products they provide create issues county-wide.

“One of the things that frustrates me the most about being a person of color is that people look at the south side and say they have those issues as far as drugs, alcohol, tobacco. But I've had the pleasure of being able to work throughout the city of Tucson and Pima County, and all schools are dealing with this issue,” he said.

However, Givens said he’s seen the number of smoke shops on the southside climb significantly throughout the years, particularly on a stretch of 12th Avenue with at least 10 smoke shops within 2 miles.

Changing how far away smoke shops can operate from other designated uses could lower the number of them, but it will be a while before those changes are realized. Tucson’s Planning Commission will review the proposals, recommend a set of zoning changes, then hold a public hearing on any amendments to the Unified Development Code. City Council can then review and adopt final changes after it holds its own public hearing.

However, the changes will only apply prospectively to smoke shops setting up operations after new zoning codes are adopted. Existing tobacco retailers won’t be forced to adhere to new zoning changes.

The new land use requirements could also subject the city to compensatory claims under Arizona’s Proposition 207, which requires governments to reimburse businesses if new land use codes result in decreased revenue.

City Attorney Mike Rankin said the fact that any new zoning regulations would only apply to new smoke shops would greatly mitigate the city’s risk, however.