South Portland council weighs limits on vape, tobacco sales

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SOUTH PORTLAND — Uproar following the opening of a vape shop across the street from Mahoney Middle School late last year has city councilors considering measures to restrict the sale of tobacco products.

A workshop Tuesday night was requested by Councilor Sue Henderson, a retired nursing professor, who said Portland Smoke & Vape on Broadway is “emblematic about what’s wrong with our society, which is a “lack of concern for common good.”

A dozen people addressed the council Tuesday, and all of them decried the existence of Portland Smoke & Vape within a 10th of a mile of the school. E-cigarettes can also be purchased at nearby gas stations and convenience stores.

Susan Tompkins, of Sylvan Road, said it’s the proximity to Mahoney, Brown Elementary School and Holy Cross School that has raised concern.

“It’s clear from reports … that teens are using these products and once they start to use them, they’re addicted,” Tompkins said. “There’s a false sense of security that these … can be somehow safer than cigarettes.”

Corporation Counsel Sally Daggett said the city can pursue either a zoning approach or a policy approach to limit the sale of vaping products.

It could amend zoning, so that shops that sell tobacco products could only open in particular districts.

Or it could create a sensitive-use setback to prohibit the sales within a specific distance of schools and other buildings. The City Council took such action when it approved amendments to ordinances regulating the licensing and zoning of marijuana retail businesses in December.

However, Daggett noted, zoning changes can’t be retroactive; they would only restrict new businesses, not an existing shop.

The city could also restrict or ban the sale of certain types of tobacco products. According to Daggett, bans on selling flavored tobacco products have been enacted in New York City, Chicago, and Providence, Rhode Island. All have been challenged in court, she said, and all have survived.

That approach could apply to existing businesses, Daggett said, by requiring them to conform within a specific period of time.

Portland Smoke & Vape opened in October 2018. The family owned business also operates shops at 1041 Brighton Ave. in Portland and in Portsmouth, New Hampshire. It offers flavored nicotine liquids – also called E-juice – and vaping devices, which are popular among high-schoolers because they’re easily concealed. The shops also sell pipes, hookahs, tobacco, cigars and other smoking-related items.

Co-owner Mark Scott on Wednesday said the shop at 585 Broadway has had “a lot of support from the community.”

“It seems like people like it,” he said. “Of course there are a few who don’t, which is unfortunate.”

City Manager Scott Morelli said many of the complaints received were directed toward the city for “allowing” Portland Smoke & Vape to open in close proximity to a school. However, there is no state law or city ordinance prohibiting its operation near a school, nor is there any business license required by the city.

“Such decisions rest with the policy-makers of South Portland (i.e. the City Council) and must be clearly expressed in city ordinance,” Morelli said in written memo.

According to Police Chief Ed Googins, there have been no recent violations for illegal sales to minors. Morelli added that the students school resource officers have dealt with for possession of nicotine products have obtained the products from either relatives or friends who are of legal age.

Scott said his shop complies with Maine law, which prohibits anyone under age 18 from entering without a parent or legal guardian. Further, he said, they’ve had no issue with underage individuals trying to enter the store or buy products since they opened.

“We ID at the door. It’s no different from seeing a smoke shop two miles down the street,” he said. “Students from Mahoney don’t even walk on this side of the road.”

Councilor Misha Pride said he’d be in favor of an outright city-wide ban on tobacco products or, at the least, banning vaping products. Daggett said she hasn’t looked into tobacco bans, but wasn’t aware of any state or municipality that had attempted to do so.

“They haven’t done that for however long that cigarette (companies) have been in business,” Scott said. “It seems a bit ridiculous.”

Councilor Kate Lewis said she had no problem with the city taking a “strong stand” and being on the “cutting-edge of policy change.”

Mayor Claude Morgan said he was “not there” with banning tobacco products altogether, but does favor a more measured approach by “tackling the knowns first” – flavored nicotine products and signs that promote them.

“I’m a proponent of doing this in steps. … Vaping is nothing without the flavor, so that’s where I’d start,” Morgan said. “… If we try to cobble something huge and comprehensive together, it’s going to bite us.”

Councilor Maxine Beecher said there is “no question” in her mind there should be a ban on the sale of flavored tobacco products. Going forward, she added, any businesses selling tobacco products should be in the city’s commercial or industrial zones.

Scott said he had no comment on the potential ban of flavored nicotine products, but noted regulation was something that’s been talked about at state or federal levels.

Many members of the public stayed until 10 p.m. to hear the council’s thoughts about vaping and share their own.

Kara Tierney-Trevor, a clinical social worker at the high school, said vaping is a “prevalent” issue in schools because it’s hard to detect.

Lee Anne Dodge, the program coordinator of SoPo Unite, which is part of the federally funded Drug-Free Communities Support Program, brought confiscated vaping materials from the high school to show how small and discreet they can be. The group’s mission is to “create and sustain a safe, just, and healthy community to prevent youth substance use.”

Christopher Kelley, of Bay View Avenue, said Portland Smoke & Vape is a “slap in the face” to all the work SoPo Unite has done and the individuals and families they serve.

Superintendent of Schools Ken Kunin thanked the council for taking up the issue, which he said has “exploded at the high school and is bubbling up” at the middle schools.

“The day (Portland Smoke & Vape) opened we started getting calls from students, parents and staff,” he said. “I appreciate the council raising the issues, because that sends a strong message.”

The council will hold another workshop after some of its questions have been answered, which Morelli said will likely be in March.

The council also requested a workshop on potential sign restrictions.

“This is not the message we want for the children in our community,” Henderson said. “The sign and this building do not seem to serve the public interest.”

Daggett said although the city doesn’t have authority to regulate the content of a sign, there’s potential for style or lighting regulations that could include a clause requiring existing signs to come into compliance.

Jocelyn Van Saun can be reached at 781-3661, ext. 183 or jvansaun@theforecaster.net. Follow her on Twitter @JocelynVanSaun.

The South Portland City Council is considering regulating the sale of “nicotine-containing vaping devices,” after receiving complaints from the community about the proximity of Portland Smoke & Vape on Broadway to Mahoney Middle School.

Council advances Knightville zoning changes

SOUTH PORTLAND — The City Council Tuesday voted unanimously to send proposed Knightville zoning changes recommended by the Planning Board to a second and final reading on Feb. 19.

The amendments developed by the city’s Comprehensive Plan Implementation Committee would impact the neighborhood’s Village Residential and Village Commercial zones and could result in “slightly” more dense residential neighborhoods flanking Ocean Street, according to Planning Director Tex Haeuser.

Amendments to the residential zone include allowing a minimum of two residential units per lot and then another unit for each additional 10th of an acre, as well as reducing the minimum lot size from 7,500 to 2,500 square feet. Among those proposed in the commercial zone is requiring any building or portion of a building within 50 feet of the residential zone to be no taller than 40 feet – the residential zone’s limit – rather than the current 50-foot limit.

Councilors commended the committee for their work of crafting the proposal, but some said they were worried how density increases might impact on-street parking.

— Jocelyn Van Saun

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