FRESNO COUNTY, Calif. (FOX26) — A lawsuit filed against Fresno’s smoke shop ordinance has been dismissed in federal court.

This was an ordinance passed back in April that limits where and how many smoke shops can operate and requires new permits for those already open.

With this new ordinance passed earlier this year, 100 smoke shops have been inspected, and 26 smoke shops have decided to close.

“All of that was refuted by Judge Sheriff in this case, whom I applaud for making these rulings,” said Attorney Andrew Janz.

The lawsuit, filed by the California Smoke Shop Association, claimed the ordinance violated their constitutional rights.

An attorney who represented the association says there is still more to be decided.

“We also argued that the ordinance violated the members of smoke shops due process rights and violated the equal protection clause. In fact, only two of those issues were actually litigated in the current case. That was the equal protection and due process issues. So the question of whether or not the ordinance unconstitutionally takes our members’ businesses and property is still to be decided. Unfortunately, we took our best shot, but the district court here in Fresno disagreed on a preliminary basis,” said Shane Smith, an Attorney for the California Smoke Shop Association.

The city argues that the number of smoke shops is putting public health and safety at risk.

Some are near schools, parks, and community centers.

Fresno City Councilmember for District 3 Miguel Arias says that at one time, there were up to 18 smoke shops in his district.

“Inspections by our court enforcement officers have uncovered widespread illegal activity, including the sale of flavored tobacco, as you’ve heard, cannabis, narcotics, illegal gambling operations, and even weapons in some cases,” said Councilmember Nelson Esparza.

In one case, a 16-year-old was caught selling smoke products at this shop on Blackstone Avenue.

The minimum age to sell controlled substances is 21.

The city says those findings are why the judge pushed back against the association’s claims.

“The judge in all of these instances has to agree to the dismissal, which he did, which is not surprising because of the rulings that he’s made in the past, statements that he’s made in the past that the city of Fresno does indeed have extreme policing powers to regulate this type of industry,” said Attorney Andrew Janz.

According to the city, 80% of smoke shops cited for selling illegal products continued to do so after re-inspection.

26 smoke shops have voluntarily closed after inspection, while others have until December of next year to close their doors.

However, the city says operators still have time to keep their doors open.

“So I want to remind those in the smoke shop industry, the windows open for you to apply for a conditional use permit, but the likelihood of you receiving an award if you continuously violate state law and city ordinance and continue to employ these tactics that endanger the public health and safety of our city, you’re likely not going to be awarded a license,” said Arias.

And because the case was dismissed without prejudice, a new lawsuit could still be filed.

“So, what the agreement between the city and the smoke shop association has done is allow individual members to refile a lawsuit in the future if their business is taken,” said Smith.

FOX26 asked the attorney if the California Smoke Shop Association plans to file again, and he said, for now, there isn’t any.

Also, a big question the city has been asking regarding the litigation is how much it was going to cost.

According to the city, it spends 1 thousand dollars in legal funds.

Inspections were also done at big retailers like Walmart and Costco – none have been caught, according to the city.