70-CV-21-10726

Filed in District Court

State of Minnesota
12/16/2021 12:45 PM

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT

Prior Lake Tobacco and Vape, Inc., Court File No. 70-CV-21-10726

Plaintiffs,

v.

City of Prior Lake,

Defendants.

FINDINGS OF FACT, CONCLUSIONS OF

LAW, AND ORDER GRANTING MOTION
TO DISMISS COUNTS I, III, and IV

The above matters came before the Honorable Martin S. Fallon for a motion hearing on

October 12, 2021. The hearing was held remotely via Zoom technology.

V. John Ella appeared on behalf of the Plaintiff. Amran Farah and Monte Mills appeared

on behalf of the Defendant.

Defendant moved the Court to Dismiss Counts I, III, and IV of the Amended Complaint

filed September 30, 2021, pursuant to Minn. R. Civ. Pro. 12.

The parties submitted written arguments in advance of the hearing and made arguments on

the record at the hearing. The Court took this matter under advisement following hearing.

Now, therefore, based upon the evidence submitted by the parties, arguments and

assertions of counsel, and the underlying file and proceedings herein,

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IT IS HEREBY ORDERED:

1) Plaintiff’s Amended Complaint alleges that the City’s ordinance (1) violates its equal

protection rights, (2) constitutes a bill of attainder, and (3) is unconstitutionally vague. The

amended complaint incorporates these three claims as the basis for relief in Counts I, III, and

IV. These Counts can be more accurately described as requested relief. The arguments of

counsel are also based on the validity of these three claims. The Court therefore bases this

Order on those claims in addition to the counts listed.

2) Plaintiff’s (1) equal protection claim, (2) bill of attainder claim, and (3) unconstitutional

vagueness claim are not valid grounds for the relief requested in Counts I, III, and IV.

3) Count II is a regulatory taking claim and not subject to the motion to dismiss. However. This

claim is also not valid grounds for the relief requested in Counts I, III, and IV.

4) Therefore, without legal basis for relief, Defendant’s motion to dismiss Counts I, III, and IV

pursuant to Minn. R. Civ. Pro. 12 is GRANTED.

5) The attached memorandum is incorporated by reference and contains the Court's Findings and

Conclusions.

BY THE COURT:

Fallon, Martin
2021.12.16
Dated: 12:01:32 -06'00'
________________________
Martin S. Fallon
Judge of District Court

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MEMORANDUM

The Court will not go into great detail in this memorandum on the facts of the case. The

Court instead incorporates by reference the facts as outlined in the 19-page Amended Complaint

filed September 30, 2021 pursuant to Minn. R. Civ. Pro. 12 (cited as Amended Complaint).

LEGAL ARGUMENT:

Rule 8 of the Minnesota Rule of Civil Procedure requires only that a complaint “shall

contain a short and plain statement of the claim showing that the pleader is entitled to relief and a

demand for judgment for the relief sought.” Minn. R. Civ. Pro 8.01. Rule 12 of the Minnesota Rules

of Civil Procedure provides for dismissal of a claim where the claim is one in which plaintiff has

failed to state a claim upon which relief can be granted in their pleadings. Minn. R. Civ. Pro 12.02(e).

When considering whether to grant a motion to dismiss for failure to state a claim, the court must

accept all of the allegations of the Complaint as true and must draw all plausible inferences from

the allegations in a manner favorable to the plaintiff. Pullar v. Independent School Dist. No. 701,

582 N.W.2d 273, 275-76 (Minn. 1998); St. James Capital v. Pallet Recycling, 589 N.W.2d 511,

514 (Minn. Ct. App. 1999); Oakridge Holdings, Inc. v. Brukman, 528 N.W.2d 274 (Minn. Ct. App.

1995). In ruling on a motion to dismiss, the court must assume that the plaintiff has the ability to

prove their claims. Doyle v. Kuch, 611 N.W.2d 28 (Minn. Ct. App. 2000). A Rule 12.02(e) motion

to dismiss must be denied “if it is possible on any evidence which might be produced, consistent

with the pleader’s theory, to grant the relief demanded.” Martens v. Minn. Min. & Mfg. Co., 616

N.W.2d 732, 739-40 (Minn. 2000). Therefore, the Court will accept the facts detailed in the

complaint as true and uncontested for the purpose of this motion alone.

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The general standard of review is that to survive a Rule 12 motion to dismiss, a plaintiff

must set forth in the Complaint a legally sufficient claim for relief. Wiegland v. Walser, 683

N.W.2d 807 (Minn. 2004); Noske v. Friedberg, 670 N.W.2d 740 (Minn. 2003). “The showing a

plaintiff must make in order to survive a motion to dismiss under Minn. R. Civ. P. 12.02(e) is

minimal.” Noske v. Friedberg, 670 N.W.2d 740, 742 (Minn. 2003). In order to survive a motion

to dismiss, a plaintiff need only put the defendants on notice of the claims asserted against them.

Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 604-05 (Minn. 2014). Minnesota “does not require

absolute specificity in pleading, but rather requires only information sufficient to fairly notify the

opposing party of the claim against it.” Id. Even “the pleading of broad general statements that

may be conclusory is permitted.” Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).

A dismissal will be affirmed only if it appears to a certainty that a plaintiff can produce no

facts consistent with the complaint to support granting the relief requested. Elzie v. Commissioner

of Public Safety, 298 N.W.2d 29, 32, (Minn. 1988); Jacobson v. Bd. Of Trustees, 627 N.W.2d 106

(Minn. Ct. App. 2001); In re Milk Purchaser Anti-Trust Litigation; 588 N.W.2d 772, 775 (Minn.

Ct. App. 1999). Dismissal of a Complaint for failure to state a claim is only proper if there are no

facts consistent with the pleading that support the relief demanded. Brakke v. Hirers, 374 N.W.2d

553, 555 (Minn. Ct. App. 1985). However, a plaintiff must provide more than labels and

conclusions, and the court is not required to accept a plaintiff’s legal conclusions. Bahr v. Capella

Univ., 788 N.W.2d 76, 80 (Minn. 2010). It is immaterial whether or not the plaintiff can actually

prove the facts alleged at trial. Martens at 739. The only question on review of a judgment on the

pleadings is whether the complaint sets forth a legally sufficient claim for relief. In re Trusts Nos.

4, 5, & 6, 543 N.W.2d 668, 673 (Minn. Ct. App. 1996). The Court will analyze each claim from

the amended complaint in turn.

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I. Count I Fails as a Matter of Law.

Because the ordinance has not yet been enforced, Plaintiff challenges the constitutionality

of the ordinance on its face rather than as applied. “A facial challenge to a legislative act is, of

course, the most difficult challenge to mount successfully, since the challenger must establish that

no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481

U.S. 739, 745 (1987); see also Soohoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 2007) (stating

that a facial challenge to the constitutionality of a statute requires a showing that no set of

circumstances exists under which the statute would be valid) (quoting Ohio v. Akron Ctr. for

Reprod. Health, 497 U.S. 502, 514 (1990)). Facial challenges often rest on speculation, raise the

risk of premature interpretation of statutes on the basis of factually barebones records, and threaten

to short circuit the democratic process by preventing laws embodying the will of the people from

being implemented. McCaughtry v. City of Red Wing, 831 N.W.2d 518, 522 (Minn. 2013) (quoting

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450–51 (2008)). Therefore, if

a court can identify even a single situation in which an ordinance might be applied constitutionally,

a party’s facial challenge must fail. Id.

A. Plaintiff cannot produce facts consistent with the complaint that would
support the allegation that the Ordinance violates Plaintiff’s equal protection
rights.

As a threshold matter, the Court considers whether Plaintiff has alleged that the ordinance

treats any other similarly situated individuals or businesses differently. Absent an allegation of

differential treatment of similarly situated individuals, an equal protection claim fails as a matter

of law. See Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 820 (8th Cir. 2011). (To state an equal-

protection claim, a plaintiff must allege that the plaintiff was “‘treated differently than other

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persons who were in all relevant respects similarly situated.’” (quoting Flowers v. City of

Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009))); State v. Cox, 798 N.W.2d 517, 521 (Minn. 2011)

(“We impose this threshold showing because the guarantee of equal protection does not require

that the State treat persons who are differently situated as though they were the same.”); Dean v.

City of Winona, 843 N.W.2d 249, 259 (Minn. Ct. App. 2014) (“An equal-protection challenge

requires an initial showing that similarly situated persons have been treated differently.”).

Plaintiff claims that tobacco retailers who do not sell vaping products and do not limit

customers to those over 21 years of age as well as liquor stores are similarly situated businesses

that the ordinance differently treats or are differently impacted. This conclusion fails for two

reasons. First, Plaintiff conflates treatment with impact. The ordinance imposes the same standard

on all business without exception. It regulates the same conduct. Because this standard may impact

certain business differently than others because of how they conduct business, does not mean that

it treats them differently. In actuality, the ordinance treats them the same. Second, the businesses

identified are not similarly situated. Plaintiff’s memorandum in opposition to this motion filed on

September 28, 2021, identifies these two types of businesses as being similar to Plaintiff and then

immediately proceeds to highlight their differences. Liquor stores are different from Plaintiff

because they sell primarily different products.1 Tobacco retailers who do not sell vaping products

are not similar to plaintiff and will not be subject to this ordinance at all. Plaintiff also adds the

qualifier to this category that these tobacco retailers also “do not limit their customers to those 21-

and over.” Id. However, this qualification is yet another difference that makes Plaintiff and these

businesses dissimilar.

1
The Court is not persuaded by Plaintiff’s argument that liquor stores are similar because they also sell flavored
products that are potentially harmful to young people. Flavored alcohol is not regulated by the ordinance at issue, and
Plaintiff’s argument here is not relevant to the case at hand.

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Therefore, because Plaintiff has not identified any other similarly situated individuals or

businesses were treated differently, it fails to meet this threshold requirement. The equal-protection

claim is fatally defective for this reason alone. The Court need not go any further, however will

provide additional analysis on the merits of the challenge as well.

Where a challenge does not involve a suspect class or a fundamental right, courts review

equal- protection challenges under a rational-basis standard. Fletcher Props., Inc. v. City of

Minneapolis, 931 N.W.2d 410, 418 (Minn. App. 2019). Minnesota’s rational-basis test consists of

three prongs:

(1) the distinctions which separate those included within the

classification from those excluded must not be manifestly arbitrary
or fanciful but must be genuine and substantial, thereby providing a
natural and reasonable basis to justify legislation adapted to peculiar
conditions and needs; (2) the classification must be genuine or
relevant to the purpose of the law; that is there must be an evident
connection between the distinctive needs peculiar to the class and
the prescribed remedy; and (3) the purpose of the statute must be
one that the state can legitimately attempt to achieve.

Id. at 427.

Equal-protection challenges under the rational-basis test are difficult to establish. See ILHC

of Eagan, LLC v. County of Dakota, 693 N.W.2d 412, 421–22 (Minn. 2005) (rational-basis review

is “deferential” and “if any reasonable distinction can be found, a court should sustain the

classification” (citations omitted)). This is because “[a] municipal ordinance is presumed to be

constitutional.” Fletcher Props., 931 N.W.2d at 418 (citing Minn. Voters All. v. City of

Minneapolis, 766 N.W.2d 683, 688 (Minn. 2009)). To challenge the constitutionality of legislation

Plaintiff must “meet the very heavy burden of demonstrating beyond a reasonable doubt that the

legislation is unconstitutional.” Id. (citing Otto v. Wright County, 899 N.W.2d 186, 191 (Minn. Ct.

App. 2017)). The power to declare a statute unconstitutional should be exercised “with extreme

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caution and only when absolutely necessary.” ILHC of Eagan, 693 N.W.2d at 421 (quoting In re

Hagerty, 448 N.W.2d 363, 364 (Minn. 1989)).

Plaintiff has not alleged any facts that would support a finding that the ordinance fails any

of the three prongs of rational-basis review. First, Plaintiff has not identified any classification in

the ordinance, let alone alleged that any classifications are manifestly arbitrary or fanciful. Any

distinctions that might be read into the ordinance have a natural basis to justify legislation adapted

to the lawful sale of tobacco products in the City. See Fletcher Props., 931 N.W.2d at 426 (quoting

Guilliams v. Comm'r of Revenue, 299 N.W.2d 138, 143 (Minn. 1980)) (“If the classification has

some reasonable basis, it does not offend the constitution simply because it is not made with

mathematical nicety or because in practice it results in some inequality.”).

Second, Plaintiff has not identified any classifications in the ordinance that are irrelevant

to the purpose of the ordinance. Plaintiff alleges that enforcing and furthering existing laws does

not support a ban on the sale of flavored vaping products to adults 21 and over because that is not

prohibited by existing laws. But a reading of the ordinance’s Finding and Purpose and Basis for

Findings included in the Amended Complaint shows that isn’t true. Two of the primary purposes

of the Ordinance are to regulate the sale of electronic delivery devices for the purpose of enforcing

and furthering existing laws, and to protect youth and young adults against the serious health

effects associated with the use of vaping products. One of Minnesota’s official public policies is

to encourage and assist smokers to quit as well as prevent young people from starting to smoke.

Minn. Stat. § 144.391.2 And one of the findings of the Ordinance is that it is more difficult for

2
On a motion to dismiss, the Court may consider documents referenced in the complaint without transforming a
motion to dismiss into one for summary judgment. Ward v. El Rancho Manana, Inc., 945 N.W.2d 439, 445 (Minn.
App. 2020); see also Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d 732, 739 n.7 (Minn. 2000). Moreover,
“the district court can consider legislative history and matters of public record, without converting the motion to one
or summary judgment.” Carufel v. Minnesota Dep't of Pub. Safety, No. A18-0476, 2018 WL 6596287, at *3 n.2 (Minn.
Ct. App. Dec. 17, 2018) (citing Central Lakes Educ. Ass'n v. Indep. Sch. Dist. No. 743, 411 N.W.2d 875, 881 (Minn.
App. 1987), review denied (Minn. Nov. 13, 1987)).

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youth and young adults, including those over the age of 21 and under the age of 25, to quit smoking

because flavored vaping products with flavors such as fruit and candy can make it more difficult

to quit.3

Thus, prohibiting the sale of flavored tobacco products to persons over the age of 21 is

clearly a rational means to achieving the Defendant’s goals of furthering the state’s policy goal of

assisting smokers to quit and protecting young adults from the serious health effects associated

with tobacco products. The fact that the ordinance also prohibits sales to persons over the age of

25 is not enough to render it unconstitutional. See Heller v. Doe, 509 U.S. 312, 321 (1993)

(“[C]ourts are compelled under rational-basis review to accept a legislature's generalizations even

when there is an imperfect fit between means and ends.”); Vance v. Bradley, 440 U.S. 93, 108,

(1979) (Even if a classification is to some extent both underinclusive and overinclusive, and hence

the line drawn imperfect, it is nevertheless the rule that “perfection is by no means required.”)

(quoting Phillips Chem. Co. v. Dumas Sch. Dist., 361 U.S. 376, 385, (1960)).

Third, there can be no doubt that the purposes of the ordinance are ones that the Defendant

can legitimately attempt to achieve. The stated purpose of the ordinance, amongst other things, is

to enforce and further the existing laws of the state and protect youth and young adults from the

serious health effects associated with the use and initiation of tobacco products—both of which

are goals that the Defendant can legitimately attempt to achieve. See Barsky v. Board of Regents,

347 U.S. 442, 449 (1954) (“It is elemental that a state has broad power to establish and enforce

standards of conduct within its borders relative to the health of everyone there.”); Grand River

3
Plaintiff incorrectly reads the findings and purpose of the Ordinance as aiming to “persons under 21 years of age.”
See Amended Complaint ¶ 35. But a reading of the literature cited in the Ordinance’s Basis for Finding illustrates
that the Ordinance is aimed at protecting youth and young adults, defined as persons between the ages of 21–25
years of age. This literature is necessarily embraced by the pleadings and may properly be considered on this motion
to dismiss. In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 497 (Minn. 1995).

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Enter. Six Nations, Ltd. v. Beebe, 574 F.3d 929, 942 (8th Cir. 2009) (“Unquestionably, the State

possesses a legitimate public interest in the health of its citizens.”); Spudich v. Smarr, 931 F.2d

1278, 1281 (8th Cir. 1991) (noting that the protection of health and safety is clearly a legitimate

interest). In a similar lawsuit challenging a similar ordinance, the Ramsey County District Court

concluded that the City of Arden Hills had a clearly legitimate policy goal by regulating use of

flavored tobacco products to protect public health generally, focusing on youth and young adults.4

Plaintiff argues that the Arden Hills decision should not be persuasive due to several differences

from the present case including the fact that the plaintiff dismissed from that case was a gas station

and not an adult only tobacco store. However, the Court finds that the differences identified are

not significant to the legal conclusions reached. The Court finds the Arden Hills decision addresses

a very similar statute that was challenged in a similar manner to the present case.

Plaintiff has failed to allege any facts that, if true, would support its heavy burden of

showing that the ordinance fails the rational basis test and is a violation of Plaintiff’s equal

protection rights. 5 As a result, the Court cannot consider the equal protection claim as grounds for

the relief requested in Counts 1.

B. Plaintiff cannot produce facts consistent with the complaint that would
support the allegation that the Ordinance is an unconstitutional bill of
attainder.

A law is determined a bill of attainder when it (1) specifically singles out an identifiable

individual or group, (2) inflicts punishments, and (3) does so by means other than through judicial

authority. Headwaters Rural Util. Ass’n, Inc. v. City of Corcoran City Council, 2006 WL 1751738,

4
Defendant’s September 14, 2021 Affidavit, Exhibit B, Order Granting Motion to Dismiss Brausen’s Count 1 with
Prejudice Arden Hills Tobacco, Inc. v. City of Arden Hills, No. 62-CV-19-6440, at 11 (Ramsey Cty. Dist. Ct. Jan. 5,
2021) (hereafter “Order”) at 11.
5
See Order (holding similar ordinance prohibiting the sale of flavored tobacco in Arden Hills did not constitute a
violation of store owner’s equal protection rights).

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at *3 (Minn. Ct. App. June 27, 2006 (citing Reserve Mining Co. v. State, 310 N.W.2d 487, 490

(Minn. 1981))). “The prohibition against bills of attainder is grounded in the separation of powers

doctrine; it is designed to prevent a legislative body from usurping the role of the judiciary by

legislatively determining issues of guilt and punishment.” Council of Indep. Tobacco Mfrs. of Am.

v. State, 685 N.W.2d 467, 474 (Minn. App. 2004) aff’d, 713 N.W.2d 300 (Minn. 2006) (citing

Nixon v. Adm’r of Gen. Servs., 433. U.S. 425, 469 (1977)).

The facts alleged in Plaintiff’s complaint do not support the elements required for a finding

of a bill of attainder. To begin, Plaintiff can avoid penalty by not engaging in the affected conduct.

Id. at 475 (citing Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 856–57

(1984)). Plaintiff does not allege that the ordinance is “intended to legislatively punish an

individual or group solely because of past conduct.” Id. at 474 (citing Selective Serv. Sys., 468 U.S.

at 847) (emphasis added). The ordinance prohibits the future sale of flavored vaping products.

Plaintiff can avoid violating the regulation by altering its conduct. See City of Corcoran City

Council, 2006 WL 1751738, at *3 (“[I]f an individual or group can escape the regulation by

altering their conduct, the proscription is not a bill of attainder because it addresses future, not

past, conduct.”). The Ramsey County District Court determined that a similar tobacco regulating

ordinance did not constitute a bill of attainder.6

The ordinance also does not inflict the kind of punishment contemplated by the

constitutional prohibition on bills of attainder. See Tobacco Mfrs. of Am., 685 N.W.2d at 474–75

(listing punishment “such as death, imprisonment, banishment, confiscation of property, or barring

participation in certain employment or occupations”) (citing WMX Techs., 105 F.3d at 1202–03).

6
Order at 9 (holding that a similar ordinance prohibiting the sale of flavored tobacco was not a bill of attainder claim
where Ordinance was “not punitive in nature and seeks to regulate future rather than past conduct”). The Ramsey
County District Court determined that the ordinance prohibiting the sale of flavored tobacco products was not intended
to punish “past conduct—instead the ordinance bans the sale of flavored tobacco products going forward.” Id. at 8–9.

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The stated purpose of the Ordinance is to protect youth and young adults against the serious health

effects associated with use and initiation, and to further the official public policy of the state to

prevent young people from starting to smoke. This stated purpose does not have a punitive intent.

Plaintiff argues that the ordinance does impose a punishment because it bars participation

in certain employment or occupation. Tobacco Mfrs. of Am., 685 N.W.2d at 474–75. However,

this overstates the scope of the ordinance. The ordinance does not bar employment, it merely

regulates the products that can be sold. Plaintiff can still operate as a tobacco and vape shop with

the ordinance in place. They are only prevented from selling a specific type of vaping products.

Plaintiff’s employment is regulated, not barred by the ordinance. Plaintiff further argues that the

ordinance imposes a punishment because it will seriously impact its profits. However, a law is not

considered punitive for purposes of evaluating whether it is a bill of attainder simply because it

imposes burdensome consequences. Nixon, 433 U.S. at 472. Therefore, the ordinance does not

impose a punishment.

Plaintiff argues that they are specifically singled out by the statute because the “whereas”

clause in the preamble of the ordinance mentions Plaintiff by name. However, the preamble is not

the actual text of Code Section 308. A preamble is a statement describing or clarifying a law and

is not actually enacted by the legislature. Ouradnik v. Ouradnik, 897 N.W.2d 300, 304 (Minn. Ct.

App. 2017), aff'd, 912 N.W.2d 674 (Minn. 2018). The preamble to a statute is not part of

the statute. Phone Recovery Services, LLC v. Qwest Corp., 919 N.W.2d 315, 322 (Minn. 2018)

(citing Twin City Candy & Tobacco Co. v. A. Weisman Co., 149 N.W.2d 698, 702 (Minn. 1967)).

Here the substantive controlling language of the ordinance does not single out Plaintiff and applies

instead to all license holders. See also Brennan v. The Governor, 540 N.E.2d 685, 688 (Mass.

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1989) (finding that statements that appear in a statute’s preamble “may aid the construction of

doubtful clauses, but they cannot control the plain provisions of the statute.”).

Plaintiff has failed to allege any facts that, if true, would support a showing that the

ordinance is a bill of attainder. As a result, the Court cannot consider the bill of attainder claim as

grounds for the relief requested in Count 1.

C. Plaintiff cannot produce facts consistent with the complaint that would
support the allegation that the Ordinance is unconstitutionally vague.

“Ordinances are presumed valid and are not to be found unconstitutional unless they are

shown to violate the constitution beyond a reasonable doubt.” State v. Ellis, 476 N.W.2d 662, 664

(Minn. Ct. App. 1991) (citing City of Richfield v. Local No. 1215, Int’l Ass’n of Fire Fighters, 276

N.W.2d 42, 45 (Minn. 1979)). The party attacking the validity of the ordinance bears the burden

of proof. Id. An ordinance that does not involve the first amendment “is facially void for vagueness

only if it is vague in all its applications.” State v. Normandale Props., Inc., 420 N.W.2d 259, 262

(Minn. App. 1988) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 494–95 (1982)) (emphasis added). A statute can be unconstitutionally vague for two

independent reasons: “First, if it fails to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits”; and “[s]econd, if it authorizes or even

encourages arbitrary and discriminatory enforcement.” State v. Ness, 834 N.W.2d 177, 184 (Minn.

2013) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)) (additional citations omitted). The

court’s power to declare an ordinance unconstitutionally vague should be exercised with extreme

caution and only when absolutely necessary. State v. Benniefield, 678 N.W.2d 42, 45 (Minn. 2004);

Getter v. Travel Lodge, 260 N.W.2d 177, 180 (Minn. 1977). The party challenging the

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constitutionality of a law on vagueness grounds must show the ordinance lacks specificity as to its

own behavior rather than a hypothetical situation. Ruzic v. Comm'r of Pub. Safety, 455 N.W.2d 89,

92 (Minn. Ct. App. 1990). “The use of general language in a statute does not make it vague.” Hard

Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171–72 (Minn. Ct. App. 2001).

“Municipalities cannot be required to legislate so precisely that there is never any disagreement

over the meaning of terms.” Ellis, 476 N.W.2d at 665. “Condemned to the use of words, we can

never expect mathematical certainty from our language.” Grayned v. City of Rockford, 408 U.S.

104, 110 (1972). An ordinance that is flexible and reasonably broad will be upheld if it is clear

what the ordinance, as a whole, prohibits. Id.

Here Plaintiff makes several incongruent allegations to support its claim of vagueness: (1)

the Ordinance does not carefully define its terms, so persons of ordinary intelligence cannot know

whether they are in violation; (2) the definition of flavored is based on a subjective standard, i.e.

whether someone can taste or smell something; (3) it is unclear what an ordinary consumer would

consume the taste or smell of tobacco or menthol, as these can vary product-to-product; and (4)

the definition of Flavored Product is vague. Amended Complaint ¶¶ 44–52.

The Ordinance clearly defines its terms and provides people of ordinary intelligence a

reasonable opportunity to understand what conduct it prohibits. First, the Ordinance plainly states

what conduct is prohibited: “No person shall sell or offer for sale any electronic delivery device

that constitutes a flavored product.” Amended Complaint at 8. Next, the Ordinance defines

“electronic delivery device” as:

Any product containing or delivering nicotine, lobelia, or any other

substance, whether natural or synthetic, intended for human
consumption through the inhalation of aerosol or vapor from the
product. Electronic delivery device includes, but is not limited to,
devices manufactured, marketed, or sold as e-cigarettes, e-cigars, e-
pipes, vapes, vape pens, mods, tank systems, or under any other

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product name or descriptor. Electronic delivery device includes any

component part of a product, whether or not marketed or sold
separately, including but not limited to any cartridges, pods, tanks,
mods, juices, liquids, gels, or any other similar substance or product.
Electronic delivery device does not include any nicotine cessation
product that has been authorized by the U.S. Food and Drug
Administration to be marketed and for sale as "drugs," "devices," or
"combination products," as defined in the Federal Food, Drug, and
Cosmetic Act.

Id. at 7. This definition describes what products meet the definition of an electronic delivery device

and provides a list of categories of devices that fall into that definition, providing any person of

ordinary intelligence a reasonable opportunity to understand what conduct is prohibited. Further,

the Ordinance defines “flavored product” as:

Any licensed product that contains a taste or smell, other than the
taste or smell of tobacco or menthol, that is distinguishable by an
ordinary consumer either prior to or during the consumption of the
product, including, but not limited to, any taste or smell relating to
chocolate, cocoa, mint, wintergreen, vanilla, honey, fruit, or any
candy, dessert, alcoholic beverage, herb, or spice. A public
statement or claim, whether express or implied, made or
disseminated by the manufacturer of a licensed product, or by any
person authorized or permitted by the manufacturer to make or
disseminate public statements concerning such products, that a
product has or produces a taste or smell other than a taste or smell
of tobacco will constitute presumptive evidence that the product is
a flavored product.

Id. at 7. Again, the ordinance clearly defines which flavored products are prohibited and gives

several examples. It specifically carves out the taste or smell of tobacco or menthol. Contrary to

Plaintiff’s allegations, the ordinance uses clear and understandable language to define its terms

and makes clear what conduct is being regulated. Any person of ordinary intelligence should

understand what conduct is prohibited.

Plaintiff also argues that the definition of flavored is based on a subjective standard, but

any supposed vagueness is dispelled by the catalog list of the kinds of smells and tastes that the

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ordinance prohibits. As the Supreme Court held in City of Rockford, enforcement requires the

exercise of some degree of police judgment, but where the ordinance’s defined boundaries are

sufficiently distinct for citizens, policemen, juries, and appellate judgment, an ordinance is not

impermissibly vague. 408 U.S. at 114 (internal quotations omitted). Here, the ordinance goes

beyond this standard and does not authorize or encourage arbitrary or discretionary enforcement;

instead, it clearly and plainly states which products and flavors are prohibited. A person of ordinary

intelligence can reference the list of flavors in the ordinance and understand what is prohibited

based on the common understanding of those flavors.

Plaintiff has failed to allege any facts that, if true, would demonstrate beyond a reasonable

doubt that the ordinance lacks specificity as to its own behavior rather than some hypothetical

situation. Therefore, the Court cannot consider the void for vagueness claim as grounds for the

relief requested in Count I.

For the above stated reasons, Plaintiff has not alleged any facts that, if true, would support

a declaratory judgment voiding the ordinance. Count I, the claim for declaratory judgment, fails

because: (a) the ordinance does not violate Plaintiff’s equal protection rights; (b) the ordinance is

not an unconstitutional bill of attainder; and (c) the ordinance is not unconstitutionally vague.

II. Because Count I Fails as a Matter of Law, Counts III and IV Have No Legal Basis
for Relief.

As outlined in the analysis above, Count I fails as a matter of law. Counts III, and IV,

request relief based on the same grounds as in Count I as well as a claim for regulatory taking.

Counts III and IV are requests for temporary and permanent injunction respectively. However,

because the claims in Count I fail, they are unavailable as grounds for the relief sought in Counts

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III and IV. The Court then considers whether the complaint alleges any facts that if proven true

would support a claim of regulatory taking as grounds for the relief sough in Counts III and IV.

The Supreme Court has repeatedly held that equitable relief is not available to enjoin an

alleged taking of private property for public use when a claim for compensation may be brought

against the government after the alleged taking. See Knick v. Twp. of Scott, 139 S.Ct. 2162, 2176–

77 (2019); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127–28 (1985);

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984); Hurley v. Kincaid, 285 U.S. 95, 104

(1932). Courts may not preemptively enjoin alleged takings where the property owners have an

available legal mechanism to obtain compensation for the alleged takings. Governments need not

fear that the courts will invalidate and enjoin their regulations as unconstitutional takings because,

“[a]s long as just compensation remedies are available—as they have been for nearly 150 years—

injunctive relief will be foreclosed.” Knick, 139 S.Ct. at 2179.

Therefore, the Court finds that Plaintiff has failed to allege any facts that, if true, would

support Counts III and IV. They must accordingly be dismissed.

For the foregoing reasons, The Court finds that, pursuant to Rule 12, Plaintiffs have failed

to properly state claims against Defendants four Counts I, III, and IV. Therefore, Defendants’

Motion to Dismiss is granted.

MSF

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