Prince & Princess Enterprises, LLC v. State of Arizona 1 CA-CV 08-0151 A
The Arizona Court of Appeals recently held that a business which satisfies the definition of a “retail tobacco store” under § 36-601.01(A)(10) is excepted from the smoking ban imposed by the Smoke-Free Arizona Act, even if the store also holds a liquor license and sells alcohol on its premises.
Prince and Princess Enterprises, LLC, the owner and operator of Magnum’s Cigar, Wine & Liquor Emporium, holds tobacco and alcohol licenses which allow it to sell alcohol and tobacco for consumption on and off its premises. Magnum’s allows smoking on its premises, including in a lounge area where it serves alcoholic beverages.
The Smoke-Free Arizona Act bans smoking “in all public places and places of employment within the state of Arizona.” A.R.S. § 36-601.01. However, stores that fit within the definition of a “retail tobacco store” are exempt from that ban. Id. The Act defines a “retail tobacco store” as “a retail store that derives the majority of its sales from tobacco products and accessories.” A.R.S. § 36-601.01(A)(10). Magnum’s filed a complaint seeking declaratory relief that it qualifies as a “retail tobacco store” and injunctive relief precluding the Arizona Department of Health Services from enforcing the Act against Magnum’s. The trial court concluded that Magnum’s did not fit within the “retail tobacco store” exception. Magnum’s appealed.
The Court of Appeals concluded that to qualify for the retail tobacco store exception to the smoking ban, a business must: (1) be a retail store that derives the majority of its sales from tobacco products and accessories, and (2) be physically separated so that smoke does not infiltrate into areas where smoking is prohibited. A.R.S. § 36-601.01(A)(10), (B)(3). The facts alleged by Magnum’s satisfied these requirements and the Court concluded that Magnum’s fit “squarely within the statutory definition of a ‘retail tobacco store.’” The fact that Magnum's also sold alcohol on its premises did not automatically disqualify it from this exemption.
The Court of Appeals reversed the trial court decision and remanded for proceedings consistent with their opinion.
