Future tobacco store locations limited by Fort Smith Board action

The Fort Smith Board of Directors voted Tuesday (May 20) to restrict tobacco and vape shops from opening within 500 feet of a school or daycare. The new ordinance does not impact such shops already open within 500 feet of a school or daycare.

The board vote was 6 to 1, with Director Christina Catsavis voting against the new ordinance, which was amended during Tuesday’s board discussion from 1,000 feet to 500 feet.

Citizen complaints recently pushed the Fort Smith Planning Commission to a unanimous vote on May 13 recommending the Fort Smith Board amend the city’s Unified Development Ordinance (UDO) to add a 1,000-foot rule for shops that only sell tobacco-related products.

According to Deputy City Administrator Maggie Rice, the city has 152 businesses that sell tobacco products, with 15 of those within 1,000 feet of a school or daycare. Of those, three are within 1,000 feet of Northside High School (North 25th Street), and two are within 500 feet. No such stores are within 1,000 feet of Southside High School (4100 Gary St.).

In response to board questions about making the amendment retroactive, city staff sought an opinion from Daily & Woods, the Fort Smith-based law firm that represents the city,

“It is our opinion that applying the proposed amendment to the UDO to foreclose existing, nonconforming uses would likely be challenged as an unconstitutional taking of property or a violation of due process,” noted Colby Roe, an attorney with Daily & Woods. “If a court found the retroactive application of the proposed amendment to be an unconstitutional taking, the City would be required to pay just compensation to the property owner(s) affected by such regulation.”

The ordinance approved Tuesday is not retroactive, but sought to make the 15 tobacco shops “non-conforming land uses.” A business in a non-conforming land use is “allowed to operate until abandoned,” according to Rice.

DISCUSSION
Several people spoke in favor of the amendment, including former Fort Smith Public School Board member Talicia Richardson. She said a store near Northside High School, which she said is painted in “vibrant colors” is unacceptable, adding that the city should do more to protect school students from such marketing and selling of vape devices.

“We don’t know the effects of these substances, and the things that are in them,” Richardson said.

Rex Chronister, an attorney speaking against the amendment, was one of three to speak against the proposed ordinance. He said the ordinance, if applied retroactively, would result in costly litigation to the city.

Director Christina Catsavis said she is worried about “due process” for tobacco businesses, especially if the amendment is retroactive. She added that such regulations sound good, but could result in Fort Smith becoming a “nanny state” with too many regulations.

Director Kevin Settle, in a passionate speech, reminded other board members that the ordinance is not retroactive and would not put anyone out of business. He also challenged the other board members to “protect the kids of this city.”

“To talk about taking people’s businesses away is totally false,” Settle said. “No businesses would be impacted as of today. … All this is, is to put a 1,000-foot buffer on new businesses going forward.”

Director Lee Kemp sought to amend the ordinance to 500 feet. Settle pushed back, suggesting that the board should be focused on keeping such stores away from schools instead of arguing about a difference of 500 feet. The board voted 4-3 to support Kemp’s amendment, with Directors André Good, Neal Martin and Settle voting against it.