April 11, 2024
Utah Court of Appeals
2024 UT App 50 (click for full text of opinion)
The Utah Court of Appeals held that St. George’s ordinance prohibiting the operation of a retail tobacco business within the city did not conflict with state statute.
M. Squared Enterprises, Inc. applied for a permit to operate a retail tobacco business in St. George City. The City’s code prohibits the operation of retail tobacco businesses within city limits and subsequently denied M. Squared Enterprise’s application. M. Squared appealed to the administrative hearing officer, who rejected their arguments. It then appealed to the district court, arguing that Utah Code § 10-8-41.6 did not give the City the authority to prohibit tobacco shops within the City. The district court affirmed the administrative hearing officer’s decision, and M. Squared appealed that order.
M. Squared Enterprises argued that the Utah statute’s plain terms allow cities to “regulate” but not prohibit this retail class. M. Squared added that if the legislature had intended to “prohibit,” it would have used that specific language.
Interpreting the statute as a harmonious whole, the Court of Appeals looked to a later section of the code that reads, “Nothing in this section… requires a municipality to issue a retail tobacco specialty license” to conclude that the statute’s plain language properly delegates authority to cities to prohibit retail tobacco stores at their discretion, and held that the City’s ordinance therefore did not conflict with state law.
