How do hookah bars get around the smoking ban?

[DiosaBellissima]

Here in my little ol’ bumpkin town of Bakersfield, hookah bars are the new thing that the kids are all into. By kids, I mean my peers. Smoking isn’t my thing and so I obviously don’t take part in these outings.

I digress. My question is: how do these hookah bars get around the indoor smoking ban in place in California? If I can’t light up a cig in an establishment, why is it ok for there to be a hookah and its smoke?

[hajario]

There are a couple of loopholes that occur to me:

1. All of the actual smoking is in out door areas where smoking is permitted. That was the case of a hookah bar in L.A. that my ex-wife described to me.

2. It’s in a tobacco shop. Tobacco shops are exempt from the smoking ban. I think that that would mean that food and drink couldn’t be served.

[garygnu]

One other possibility is that there are no employees. This loophole might not exist anymore, though.

[Cluricaun]

There’s a place just down the street from me called Fumare that just opened, but my town bans indoor smoking starting January 2nd. I’m really hoping it doesn’t go out of business before I can check it out. They seem to serve alcohol too, so it could be a pretty chill place.

[Ethilrist]

@Cluricaun

They seem to serve alcohol too, so it could be a pretty chill place.

Especially if they’re doing that outdoor-only thing…

[Cluricaun]

@Ethilrist

Especially if they’re doing that outdoor-only thing…

God no, we’d all be dead. I just found their website and I emailed them to ask what happens to them after the ban. I’ll post any reply that I get.

[Mathochist]

@hajario

2. It’s in a tobacco shop. Tobacco shops are exempt from the smoking ban. I think that that would mean that food and drink couldn’t be served.

Not in New Haven, CT. The tobacconist’s is also a bar and does a rather brisk business being the only one you can smoke in.

[hajario]

@Mathochist

Not in New Haven, CT. The tobacconist’s is also a bar and does a rather brisk business being the only one you can smoke in.

I am sure that the rules vary all over the place. The OP asked a question specific to California.

[Mathochist]

@hajario

I am sure that the rules vary all over the place. The OP asked a question specific to California.

Yes, you’re sure. There are plenty of readers who might just assume that the rules are more or less the same. If absolutely nothing else, I point out that there are local variations.

Besides which, I quoted you saying “I think that that would mean that food and drink couldn’t be served.” If the ban is written so that tobacconists can serve food and drink here, they might be there as well. Of course that’s might, not must.

[Larry_Borgia]

Both D.C and New York have specific exemptions for specific establishments. In D.C. cigar bars are exempted from the ban if more than 75% of their revenue comes from tobacco sales. I imagine something like that would apply in California.

[want2know]

@Larry Borgia

Both D.C and New York have specific exemptions for specific establishments. In D.C. cigar bars are exempted from the ban if more than 75% of their revenue comes from tobacco sales. I imagine something like that would apply in California.

Don’t know if this still is the case, but in 2004, Mrs. Know and I were in San Diego on our honeymoon, walking along the Gaslamp District. We were looking for a place to have a drink, but it was a Friday night, and the lines were just too long. We ended up in a coffee, cigar and hookah establishment where I had a great coffee and a nice cigar. We were at one of the outside tables, but people were smoking the hookah indoors. At the time, there probably was the same exemption mentioned by Larry .

[Hunter_Hawk]

I dunno about California, but apparently what you can do around here is to get your establishment listed as a private club. The folks working there have to be volunteer (I suspect you can insert air quotes for that last word), and there are some other requirements that you have to meet.

[Cluricaun]

I got an email back from Azeem Syed, one of the owners of the place I mentioned up thread. He says:

@Azeem

Cluricaun, Fumare Lounge appreciates your concerns and your comments in regards to the "smoking ban." Rest assured the Schaumburg municipality is cooperating with us and vise-versa so that both sides can go home happy. In the meantime, come on in anytime during business hours and allow us to indulge your senses! Sincerely, The team at Fumare Lounge

So it sounds like they’re not entirely sure what’s going to happen. Either way I’ll be stopping by to check the place out. Hopefully they don’t get their business kicked out from under them by this legislation.

[Gfactor]

Here’s an article about the situation in Ohio: http://www.athensnews.com/issue/article.php3?story_id=26629 (some are exempted by an 80% rule).

A legal challenge to a local ordinance in IN: http://www.purdueexponent.org/index.php?module=article&story_id=2970

Smoking ban will snuff out hookah bars, too (Seattle)

http://www.lasvegassun.com/sunbin/stories/lv-other/2006/nov/28/566693932.html (Nevada)

Smoke like an Egyptian (Austin)

and a bit on CA from the same article:

Joseph Melamed of the Gypsy Café in Westwood, California, has another strategy. He says that California’s smoking ban was enacted to protect employees, not patrons (who can choose to boycott the bar). So he has taken advantage of an exemption for owner-operated bars with no employees, and made his employees part-owners. The gods of Egypt must be smiling.

[Gfactor]

Ah, here we go: DOES INDOOR SMOKING IN HOOKAH BARS OR CAFES VIOLATE THE SMOKE-FREE WORKPLACE ACT?

[garygnu]

@Gfactor

Ah, here we go: DOES INDOOR SMOKING IN HOOKAH BARS OR CAFES VIOLATE THE SMOKE-FREE WORKPLACE ACT?

Heh…I wasn’t too far off.

[iamthewalrus_3]

@Gfactor's link

In order to claim the “small business” exemption, a hookah bar must not only have five or fewer employees, it must also legally be allowed to discriminate on the basis of age and prohibit minors from entering the establishment. If it sells or serves food or nonalcoholic beverages, the hookah bar cannot discriminate on the basis of age because of the Unruh Civil Rights Act, which prohibits arbitrary age discrimination.

That doesn’t sound right to me. Can the local bar really not keep under-21 people out if they sell someone a coke?

[Gfactor]

@iamthewalrus(:3=

That doesn’t sound right to me. Can the local bar really not keep under-21 people out if they sell someone a coke?

This particular argument struck me as a stretch when I first read it. Yes the statute prohibits some age discrimination. But courts take a careful look when they consider age discrimination claims under it:

(4) Age discrimination may violate the Act if used as an arbitrary class-based generalization. Although the Act sets forth several categories of persons covered by the statute, the Supreme Court of California has deemed these express categories as illustrative rather than restrictive, and has construed the Act to apply to several unexpressed classifications based on personal characteristics. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1152 [278 Cal. Rptr. 614, 805 P.2d 873].) **Courts have found age to be a category that, although not mentioned in the Act, may be a characteristic reached by the Act when it is used as an arbitrary class-based generalization. ** (See, e.g., Alch v. Superior Court (2004) 122 Cal.App.4th 339, 391 [19 Cal. Rptr. 3d 29]; O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 792 [191 Cal. Rptr. 320]; Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d at p. 725.) However, the courts treat age classification differently from categories enumerated in the statute. There is no general prohibition against all age-based discrimination or preferential treatment, as there is with the categories expressly mentioned in the Act.

Age-based distinctions often appear in statutory programs. Congress, as well as the federal and state legislatures, has permitted various age distinctions. “Social Security and Medicare are but two examples of congressional enactments designed to assist senior citizens once they retire.” (Starkman, supra, 227 Cal. App. 3d at p. 1500.) The federal legislature has enacted title 42 United States Code section 1381 et seq. (supplemental security income); title 26 United States Code section 121 (one-time tax exclusion for sale of principal residence by individuals over 55 years of age); title 42 United States Code section 1395 (health insurance for aged and disabled). The California Legislature has enacted Public Resources Code section 5011 (reduced rate passes to state parks); Education Code section 89330 (waiver of fees at California State University); Welfare and Institutions Code section 12000 et seq. (State supplementary program for aged, blind and disabled); Government Code section 12941 (unlawful employment practice); Revenue and Taxation Code section 69.5 (homeowner’s exemptions for persons 55 years of age and older) (Starkman, at p. 1500); as well as Civil Code sections 51.2 (age discrimination in housing sale or rental) and 51.3 (senior citizen housing). All of these statutes provide for distinctions based on age, but are permitted because the Legislature found valid reasons for enacting these programs.

California courts have allowed private parties to extend or withhold benefits based on age. In Koire v. Metro Car Wash, supra, 40 Cal.3d 24, the California Supreme Court expressly stated “[c]harging different prices to children and senior citizens is sometimes permissible and socially desirable.” (Id. at p. 36.) Another California court found that rental car companies were permitted to refuse to rent to drivers under the age of 25. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494 [82 Cal. Rptr. 2d 368].) A condominium association’s age restriction favoring those age 40 and older was held valid in Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal. App. 3d 1012 [261 Cal. Rptr. 875]. Finally, as discussed by both parties, theater ticket discounts for children and senior citizens were upheld in Starkman, supra, 227 Cal. App. 3d 1491.

(Emphasis added.) Pizarro v. Lamb’s Players Theatre, 135 Cal. App. 4th 1171; 37 Cal. Rptr. 3d 859; 2006 Cal. App. LEXIS 64; 2006 Cal. Daily Op. Service 673; 2006 Daily Journal DAR 927 (2006): http://login.findlaw.com/scripts/callaw (login required).

Of course I’d welcome the opinion of a California lawyer. Hey Campion!