The Philadelphia Code provides a process to shut down businesses that engage in “nuisance behavior,” defined generally as: “Behavior that interferes with the health, safety, or welfare of the community.” Phila. Code §9-4401(3). On February 19, 2026, City Council unanimously passed Bill 251097, which added a new nuisance behavior to the definitions: “Illegal sale of tobacco products in violation of state or federal law, including, but not limited to, the sale or distribution of tobacco products to individuals under twenty-one (21) years of age, or operation of a tobacco retail establishment without a valid permit as required by Chapter 9-631 of this Code.”
The reason City Council took this action was twofold. First, there is a proliferation of smoke shops in the City opening without proper zoning and permitting and engaging in improper sales. Second, many of these shops are selling products to minors and creating additional quality-of-life issues with “loitering, public disorder, drug activity, and inadequate visibility into storefronts.” The new law says that if a tobacco retailer lacks proper business licenses or repeatedly is caught selling products to minors, it can be declared a nuisance and shut down.
On March 5, 2026, the Mayor returned this legislation to City Council “unsigned,” stating: “While this legislation is well intentioned, the Law Department has advised that the bill is preempted by state law. For this reason, I am returning Bill Number 251097 unsigned.” So how did the Bill become law?
The Mayor has only two forms of action available regarding legislation passed by City Council: approval or disapproval. Returning a bill “unsigned” with a note is neither. Therefore, the Mayor officially took no action on the Bill by the deadline (i.e., the first City Council meeting occurring at least 10 days after the Mayor receives a certified copy of a bill). In that instance, the legislation passes automatically, and that is what happened here.
However, was the Mayor justified in creating this cloud on Bill 251097 and suggesting that the legislation would be preempted by state law?
That concern does not seem to be justified.
As discussed generally in my earlier article, there are three types of state preemption: express preemption, field preemption, and conflict preemption. In regard to Pennsylvania tobacco law which contains a preemption provision, express preemption is the applicable analysis.
Pennsylvania law, however, has a savings clause that addresses certain Philadelphia ordinances: “This section shall not apply to any ordinance or regulation adopted by a city of the first class prior to June 1, 2018, regarding or affecting the sale of tobacco products by dealers licensed under this article. Ordinances and regulations adopted prior to June 1, 2018, shall remain in full force and effect unless repealed by a city of the first class.” Philadelphia’s ordinance requiring tobacco retailers to have a City Tobacco Retailer Permit predated June 1, 2018. Therefore, the regulatory scheme Bill 251097 is protected from preemption.
Next, let’s say that the new law is violated. What are the most comprehensive enforcement actions that can be taken? Ideally, not only would be business be physically shut down with a Cease Operations Order, but it would be followed by revocation of the business’s Commercial Activity License and Tobacco Retailer Permit (or denying them if they were never obtained in the first place). Here is the legal basis for that chain of events.
First, Phila. Code §19-2602(4)(d) requires holders of Commercial Activity Licenses to “refrain from causing or permitting an owner or occupier to cause a public or private nuisance.” So, violate this new law, get shut down as a business nuisance, which should also constitute a public or private nuisance, thus requiring the Department of Licenses and Inspections (L&I) to revoke the Commercial Activity License under Phila. Code §19-2602(4)(d)(.1).
Second, Philadelphia Code §9-631(2)(c)(.5) requires that a person must have a valid Commercial Activity License to hold a Tobacco Retailer Permit, which they would now lack. The dominoes would then fall in this order: (1) business is determined to be a nuisance business and subjected to a Cease Operations Order, (2) L&I finds a public nuisance based on the nuisance business violation and revokes the Commercial Activity License, and finally (3) the Tobacco Retailer Permit is revoked for lack of a Commercial Activity License.
The neighborhoods need to advocate for this complete chain of enforcement to maximize the effort to protect children and the general public from the harm of illegal smoke shops. They also need to monitor the City’s attitude towards enforcement to ensure that the preemption argument is not used as a pretext to avoid taking action against these nuisance businesses.