Bad move

(The Rockdale Reporter has no lawyers on staff, but we did run this editorial by an attorney to make sure our research was correct before going to press. We would also like to add that our city council members are also not lawyers but are essentially unpaid volunteers who donate a lot of time in meetings and workshops on behalf of our town, and their work is very much appreciated by the The Rockdale Reporter.)

At last Monday’s city council meeting some of the council members overstepped their boundaries by banning a certain type of business in Rockdale.

The vote was close at three to two because one city council member was absent. That absent person would have voted against the ban which would have resulted in a tie. The tie would have to be broken by the mayor. We don’t know how he would have voted but hopefully he would have been more up to date on the law in Texas.

The issue at hand was the vape shop that has been operating in the Brookshire Brother’s shopping center for six years is moving to a new location on the east side of town. The people who are moving into the now empty shopping center space also wanted to sell vape products and three of the city council members didn’t want them to be able to. The vaping products are already being advertised by the new company, which hasn’t opened yet, in their storefront window.

“Preemption” is the reason the city council can’t do this. Preemption occurs when, by legislative or regulatory action, a “higher” level of government (state or federal) eliminates or reduces the authority of a “lower” level over a given issue. In other words, the city council is trying to bypass Texas law. This is where a lawsuit against the City of Rockdale could come in.

The council member who brought up banning the business had her heart in the right place. She wanted to make our city safer for kids. Totally understandable. But it was arbitrary and doesn’t pass muster.

One of the members who voted for the ban asked aloud, ”Where do we draw the line? Do we ban new Mexican food restaurants because we have enough of them?” Good point, but he then, inexplicably, turned around and voted for the ban.

In Texas, municipalities can stop a business from opening in certain places through zoning laws, which was not the case here. For instance, a city might want to stop a bar or a strip club or a liquor store from opening next to a school. That’s where zoning comes in.

But cities can’t arbitrarily stop a business from opening because some city council members don’t like the type of business it is. It flies in the face of our free-market system. If the people wanting to open their new vape shop decided to sue the city they could do so, and the city would lose that lawsuit. There are hundreds of precedents.

And who foots the bill if the city gets sued? We the taxpayers.

And it’s not only Texas law. Banning a business from opening also violates the first and 14th amendments to the Constitution of the United States.

The Rockdale Chief of Police was also at the city council meeting and advised against making too many laws, but some council members didn’t want to hear that.

The chief also said that vaping by minors has become a problem. You can see that in the police report every week in The Reporter.

“Vaping is less harmful than cigarette smoking, but it is still not safe,” according to Johns Hopkins University.

So we get it. Wanting to keep kids from having access to vape materials is a virtuous thing.

But it also, unfortunately, won’t hold up in a court of law.—K.W.C.