Commentary: Vape Shop regulations – Discriminatory or Failure to Act?

I read in a recent local publication (NVDaily: “Front Royal Council Discusses Vape Shop Boom,” March 17th) that Front Royal is struggling to explain the proliferation of vape shops within the town limits.  The current shop count as indicated by the source was a total of 11 retail outlets.  Recent concern expressed by Mayor Cockrell as a result of an abundance of negative social media outpouring, compelled the mayor to address this issue in a recent Town Council work session.  In attendance was Laura Kopishke, Director of Planning and Zoning for Front Royal.  Kopishke is quoted as saying:

“We are not soliciting but we are also not discriminating against them either so vape stores fall under retail uses — they are selling a product,” Kopishke said. “We cannot discriminate against that product that they sell.”

Additionally, Council Member Amber Morris is also quoted as concurring with the opinion rendered by Kopishke by stating that:

“The problem that we ran into was the only thing we could do was tighten our zoning regulations because, as a pretty conservative council who also enjoys free enterprise, at what point do we start regulating businesses and … at what point do you say ‘we just don’t like your type of business’ and it’s discriminatory,” Morris said.

As a town property owner and layman in government affairs, I cannot accept these statements at face value.  The Commonwealth of Virginia, based upon moral ground, quality of life, and in protecting the good of the Commonwealth, has and does restrict business activity that could be deemed as corruptive or detrimental to the moral turpitude of the community.  You will not find gambling establishments, title loans, internet cafes, private liquor stores, houses of ill repute, Strip Clubs, bars (where food does not count for 51% of revenue) and recreational marijuana dispensaries — yet.  Somehow, the state has found that restrictions of these establishments is not discriminatory.

Furthermore, the Town of Front Royal’s Zoning Chapter 171-1(A)(B) provides town leadership the authority to classify districts in order to “regulate, restrict, permit, prohibit and determine the following: The use of land, buildings, structures and other premises for agricultural, business, industrial, residential, floodplain and other specific uses”.

Upon review of the Town of Front Royal’s Zoning Code, the Community Business District (C-1), which encompasses most if not all of the commercial corridors through town, does indeed list retail establishment uses as By-Right.  Of course, Vape Shops fall under this retail guideline.  There are about 40-plus/minus uses that are approved without requiring a Special Use Permit, and then another 20 uses approved via Special Use permitting.  What is interesting are the retail “exceptions” further explained in Section 175-39.C of the Zoning Code.  Retail establishments are not permitted to engage in transactions that are: “inclusive of coal, wood, oil, and lumberyards, accessory uses, adult bookstores (stores engaged in the sale of magazines and other publications of sexually-oriented nature), massage parlors and stores engaged in the sale of sexual aids, devices and merchandise.” – (Amended 7-25-05, 7-28-08 and 6-22-15-Effective Upon Passage)

This seems odd.  Under current Council’s and Administration’s logic, these exclusions would be discriminatory to entrepreneurs that desire to engage is such business activity.  While some of these industries may seem unsavory and operating contrary to the common good, why can’t vape/tobacco/THC shops be inclusive/included on this list, or at the bare minimum be removed from the retail category?  Why can’t council change their zoning ordinances to place Vape Shops under a C-1 Commercial category where a Special Use Permit can/must be sought? Or better yet, create a special zoning district called the Cannabis Business District (CBD—No Pun intended).  This would give Council the leverage it needs to control the influx and eventually control the districts where marijuana would be permitted to be sold. Once Cannabis licenses are granted — and it is currently planned that the State issue just 400 retail licenses statewide to sell marijuana — it is my opinion that competitive forces will force non-cannabis licensed vape shop owners out of business.

I agree with statements by Morris suggesting that vape shops are simply establishing locational dominance to aid in their business activities if they apply and are awarded a recreational THC license.  However, I do not agree with the fact that Front Royal’s hands are completely tied or even tied at all in dealing with this influx.

As new or newly legal products and technologies enter the market, the Town must stay ahead of this curve to plan for future impacts.  I am afraid it may be too late for the 11 existing businesses, but now is the time to end the influx, better control it, and direct where you will allow the future Marijuana shops to operate.  This is not discriminatory.  — This is planning.  You have the tools.  Use them.  People don’t plan to fail, but they do fail to plan.

By Gregory A. Harold

(Editor’s note: Harold is a former member of the re-formed FR-WC EDA Board of Directors.)