Port: Devils Lake's new age-21 vaping law is probably illegal

Do we want a situation where a citizen can be committing a crime simply by traveling through a North Dakota community using a product that, in every other part of the state, is legal?

Devils Lake sign .jpg
A sign welcomes guests to Devils Lake, N.D. (Grand Forks Herald)
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MINOT, N.D. — Recently the Devils Lake City Commission passed a new ordinance raising the age at which it's legal to purchase and use vaping products. The city also increased the penalty for the unlawful sale, purchase, and/or use of said products.

The North Dakota Century Code sets the age for vaping at 18. Devils Lake has set it at 21.

Devils Lake has also doubled the state-level fine for these infractions.

These changes were made after a campaign from the Lake Region District Health Unit, meaning it's an example of one arm of government lobbying another arm of government for more government.

Can you hear me sighing? Because I'm sighing.


The problem is these changes are almost certainly illegal, for a lot of the same reasons why the decision by the city of Fargo and other communities around the state to double state-level traffic fines is probably illegal.

We cannot have equal protection under the law if the same unlawful activity carries different levels of punishment depending on which uniform the law enforcement officer involved is wearing.

The North Dakota Supreme Court has been clear about this in the past : "[w]hen two statutes prohibit the same conduct but result in different penalties a person suffering the more serious penalty has been denied equal protection of the laws."

Here's a hypothetical to illustrate that point.

Imagine you're 20 years old and live in Minot. You legally own and use a vaping product under state law. You then get in your car and begin traveling to the University of North Dakota in Grand Forks where you're a student.

Along the way, you get stopped for speeding in Devils Lake.

If the officer is a Devils Lake police officer, you can get a ticket for using your vaping product.

If the officer is with the North Dakota Highway Patrol, however, or the Ramsey County Sheriff's Office, they wouldn't write you a ticket. They couldn't write you a ticket. They don't enforce city ordinances. As far as they're concerned, the use of a vaping product by a 20-year-old adult is perfectly legal.


What should you do to avoid this situation? Take back roads to skirt Devils Lake?

Now imagine the same scenario, except you're 17 years old. You're getting a ticket for vaping underage, and it doesn't matter which flavor of law enforcement officer stopped you since that's the state law, but if it's a state or county official your fine is going to be half what you'd get if it's a Devils Lake officer.

Setting aside the blatant equal protection issues, is that sort of patchwork of laws and regulations really want we want in North Dakota?

Do we want a situation where a citizen can be committing a crime simply by traveling through a North Dakota community using a product that, in every other part of the state, is legal?

Do we really need some things to be more illegal in certain parts of the state than others?

Policymakers in our state have long tried to prohibit that. State law gives locals some flexibility, but generally, it prohibits locals from levying fines that go beyond state levels. The State Supreme Court, in cases like the City of Fargo vs. Little Brown Jug and Sauby vs. City of Fargo , has upheld those prohibitions.

Between traffic fines, and now Devils Lake's actions on vaping, we're very quickly using the uniformity in law our state has long enjoyed.

Our elected leaders need to put a lid on this can of worms soon.


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Rob Port, founder of, a North Dakota political blog, is a Forum Communications commentator. Listen to his Plain Talk Podcast and follow him on Twitter at @RobPort.

Related Topics: DEVILS LAKE
Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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