Henrico officials seek to crack down on tobacco, vape shops

Henrico County officials are investigating ways to crack down on tobacco and vape shops in the county and also weighing the possibility of seeking changes to state laws that govern them.

Officials, and some residents, are concerned about the proliferation of such shops countywide and the possibility that some may be regularly selling legal and illegal substances to underage customers. Though localities in Virginia lack the ability to enact any regulations without specific authority from the state government, Henrico planning and legal officials are looking into potential ways to restrict the shops within existing law, Henrico Planning Director Joe Emerson told the Henrico Board of Supervisors during a brief discussion at its July 25 meeting. They expect to update the board on their findings within a few months, he said.

The discussion was prompted by Fairfield District resident Skyann Carpenter, who during the board’s public comment period expressed her concern about vape and tobacco shops located in school districts.

“You see a lot of young people going into these stores. Some look as young as 13 years of age,” said Carpenter, who counted several tobacco and vape stores, some visible and others less advertised, along a stretch of Nine Mile Road from Laburnum Avenue to Airport Drive.

Carpenter pointed out a shop on Nine Mile Road and Holly Avenue, located in close proximity to Highland Springs High School. In addition, she said, another shop recently opened directly across from Fairfield Middle School, near an area where many youngsters play outdoor sports.

“I think that is a bad look,” she told the board, noting that she’s seen cars so full of smoke that she doesn’t know how drivers can operate them. “I’m not understanding why these stores are allowed to be opening in a school zone district. We don’t need that many [tobacco and vape] stores. They have more tobacco and vape stores than they have pharmacy stores, grocery stores. . . It’s just making our community, my community, look really bad.”

But applying restrictions at the county level to such shops presents a challenge because tobacco and vaping products and equipment are state and federally regulated, meaning anyone with a license can sell the products.

“We can’t necessarily restrict or regulate things if the state code doesn’t provide us the ability to do so,” said Henrico County Planning Director Joe Emerson.

The county also cannot control the particular use or location of private businesses, including vape or tobacco shops, as long as they meet the established zoning parameters of a given parcel of land, explained Varina Supervisor Tyrone Nelson. Nelson used fast food restaurants as an example, telling Carpenter that supervisors can’t dictate what type of fast food restaurant locates in a spot zoned to allow it, as long as it meets those zoning requirements.

Nelson acknowledged that he believes there are too many of the same type of private businesses in Eastern Henrico, citing tobacco shops, car washes and private storage areas as a few examples, but explained that not enough other private businesses want to locate where those businesses do.

“It sucks that we can’t get certain things in Eastern Henrico because private business doesn’t want to invest,” Nelson said. “That’s really what it comes down to – they don’t want to invest in our communities.”

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The sale of tobacco and vape products is regulated at the state and federal levels, and any retailer that sells either must be approved to do so. But determining the exact number of stores in Henrico that sell vape products is not easy. A Virginia Department of Taxation official told the Citizen that 139 businesses in the county are registered (through a form titled ST-10C) to sell cigarettes exempt from tax for resale, while another 12 have Other Tobacco Products licenses, which are required for businesses that purchase their vape from an unlicensed distributor.

“However,” that official said, “we do not have a comprehensive registration designation that would identify a business that sells other tobacco or vape products. So although some stores that have an ST-10C also sell vape, not all vape stores have an ST-10C nor do all vape stores have an OTP license.”

That means that the state is not able to produce a list of all vape retailers within a locality, the official said.

Carpenter expressed her disappointment in seeing so many vape and tobacco shops, not only on Nine Mile Road, but all over the county.

“I used to be proud to be a citizen where I live, but now, like I said, the deterioration and destruction of the stores and the crime is increasing, because people are taking part of the stores, which to me has no nutritional value,” she said.

She also questioned why EBT cards were allowed to be used in those shops and called for her tax money to be put toward measures to “counteract” the vape and tobacco stores.

Nelson and Henrico County Manager John Vithoulkas told Carpenter that county officials were frustrated, too.

“You’re kind of preaching to the choir when it comes to this matter,” Vithoulkas said. “We are looking at limiting the products that are being sold. Sadly, from police information that we’ve gotten, are not limited to just tobacco. There are other substances that have been sold, there are substances that have been sold to kids that are not 18, of age, so it is, it’s showing up in our schools.”

“I want you to be proud of your community, because your tax dollars do go to some good,” said Nelson, highlighting the county’s investments in recent years in Eastern Henrico in facilities such as the Eastern Henrico Recreation Center and the Frank J. Thornton YMCA Aquatic Center on Laburnum Avenue and the Fairfield and Varina libraries.

“It can be discouraging, but your voice helps strengthen our fight,” he told Carpenter. “So I just want to say thank you and know that we know and we’re going to try and tighten it up.”

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Nelson also assured Carpenter that county officials have been meeting to discuss the topic in recent months and said that Fairfield Middle School Principal Gena Jones had reached out in advance to the county to alert officials about the vape shop that was opening across the street. Nelson has discussed the issue with Henrico Police Chief Eric English as well, he said, pointing out recent successful sting operations conducted by police in which vape and tobacco shops were caught selling products to underage customers – efforts that at least in several instances resulted from a citizen reporting to county officials which shops had been doing so.

Then “we literally sent folk in and caught them doing it,” Nelson said. “Our biggest way to combat [unlawful activity] is to make sure that if illegal things are happening that we’ve got to lock it down with police.”

Some tobacco and vape shops also offer gaming machines, which Vithoulkas told Carpenter “absolutely cannot be allowed in those establishments.”

The solution, he said, is to enforce that law and then prosecute those who break it.

One challenge facing county officials is that although it is possible to apply proffers (specific standards that can be attached to a development project) that ban certain retail uses [such as vape shops] from new shopping centers or other retail areas, new proffers cannot be retroactively applied to existing retail developments. So tobacco and vape shops are free to locate in many of the latter spots, Three Chopt Supervisor Tommy Branin said.

“No one had considered vaping [years ago], so it wasn’t excluded from the shopping centers and places that you see it going in,” Branin said about shopping centers that were developed 10 to 50 years ago.

Emerson is working with Henrico County Attorney Andrew Newby and his staff to learn more about what options the county has to regulate tobacco and vape shops. But Vithoulkas told the board that the most likely way to do may be discussing the matter with the county’s General Assembly delegation in an attempt to introduce stronger regulation through a new state law.

A similar effort took place in the recent past, when Henrico’s concerns about the proliferation of check-cashing businesses prompted state legislation to reduce their numbers, Vithoulkas said.

Where the county’s current efforts end is unknown, but Nelson said that officials are determined to find an effective resolution.

“This is an ongoing battle,” he said. “It’s frustrating, it’s sad, it’s kinda sick almost, to a certain degree. But we’re going to the best that we can.”

– Citizen Editor Tom Lappas contributed to this article.