Law Committee Revises Village Code for Vape and Gun Shops

Following up on a meeting it held this summer, the Scarsdale Village Law Committee took another next step toward limiting the presence of vape shops and gun stores within the village.

Since Scarsdale is unable to enforce an outright ban on these stores as a municipality cannot dictate what retailers may and may not sell. However, the village is able to restrict the location of certain establishments, and set other safety standards as part of its zoning code.

Specifically, on Tuesday 9-25 the committee approved changes to the local zoning code that increase the distance between these retailers and schools, houses of worship and the like, and clarify the village’s official definitions of the goods sold at the establishments.

First, the group addressed the term “vape shop.” Recognizing that “vapes” are just one type of a class of products, and the term “vape shop” will not be used in the code; the village is now regulating retailers that sell one or more versions of electronic nicotine delivery systems (ENDS), and related components and parts. These include vapes, vaporizers, vape pens, hookah pens, e-cigarettes, e-pipes, tank systems, and any other electronic- or battery-powered devices and accessories used to smoke flavored solutions.

Village Attorney Angela Sapienza-Martin, explained, “For instance, (considering) the two locations that we know for certain, in the village, that do sell these products, neither would be a ‘vape shop’ per se; they sell a number of other products, so that’s why we thought this change was necessary.” She continued, “We felt that this definition, which comes from the FDA, was the most all-encompassing definition we looked at.”

Next, Sapienza-Martin announced that the village’s official definition of “firearms,” which previously was based on the description provided in the federal Gun Control Act, would be modified to include “antique guns,” which are not included in the legislation. Trustee Seth Ross had suggested the change during the committee’s last meeting on the issue, pointing out that antique guns should be subject to the same restrictions as other firearms, as they also can cause harm to others.

Restricted Establishments
Scarsdale plans to classify ENDS and firearms retailers as restricted establishments that require a special use permit for the sale, transfer or commercial delivery of these products and related accessories.

Their locations would be limited to the “VCR 1.0 Zone,” covering Garth Road from Freightway to the Eastchester border. They also must be sited more than 250 feet from away from schools, nurseries, nursery schools, daycare centers, playgrounds and houses of worship, and over 250 feet away from similar restricted establishments.

There already is a house of worship currently located on Garth Road -- Chabad of Scarsdale – and the Cornerstone Children’s Center is further south.

As the VCR 1.0 Zone is close to the Eastchester border, Sapienza-Martin noted that the regulation applies regardless of jurisdictional boundary; in other words, if school, house of worship, daycare center or the like was located in Eastchester, a restricted retailer in Scarsdale still must be sited more than 250 feet away from that establishment.

The proposed code modifications also address storage of ENDS components and parts, and firearms and ammunitions. Retailers already must comply with a number of local, state and federal guidelines regarding storage, such as properly securing products and stocking them behind counters, away from customers. Scarsdale has proposed expanded storage regulations to be consistent with its other code modifications (e.g., ensuring all products are classified as ENDS) and addressing any gaps that impact safety.

Getting Affairs in Order
Because two Scarsdale businesses currently sell ENDS products, the village must allow those establishments an appropriate timeframe to come into compliance with the proposed code changes. Generally speaking, when a code amendment restricts an activity that was previously permitted, a municipality must be reasonable and provide organizations with sufficient time (or “amortization period”) to change non-conforming practices and comply with new regulations. “If an entire business is non-conforming, then you’re looking at a much longer period of time; if it’s a single product that you’re making non-conforming, then you may be looking at a shorter period of time,“ said Sapienza-Martin.

She noted that one of the Scarsdale retailers already has stated that he would have little problem with complying with the new code provisions, but the other retailer – 7-Eleven -- is more resistant. “One of the attorneys in the legal department… said that this would be a very big deal for them,” Sapienza-Martin said, but, the company has not shared any supporting sales data to support the argument. “They may be looking to challenge… because they don’t want other municipalities seeing what we’re doing and mimic it.” After considering existing case law, and discussing which timeframes would be seen as fair and reasonable, the committee decided to provide the establishments 12 months to comply with the modifications.

The committee then clarified that, since the code amendments are part of the village’s zoning code, the Scarsdale Building Department would be responsible for enforcing the new requirements via regular inspections.

Residents, of course, will have a chance to voice their opinions about the proposed revisions before they are finalized. Trustee Carl Finger noted that, “We’ll keep an open mind, and hear from any member of the public who comes to the public hearing, and we’re sending it over to the planning board… there will be another opportunity for anyone to speak, and then it will come back to us.” He continued, “They’ll be opportunities for us to consider what (additional) information people provide to us.”

Laura Halligan is a local writer, editor and marketing consultant. She is principal of Pinch Hit Prose and provides communications services to entrepreneurs, small businesses and nonprofits.