DOES INDOOR SMOKING IN HOOKAH BARS OR CAFES VIOLATE THE SMOKE-FREE WORKPLACE ACT?

BACKGROUND
The terms “hookah bar” or “hookah lounge” can refer to a variety of businesses where a flavored tobacco mixture is smoked through water pipes; these include traditional bars licensed by the state Department of Alcoholic Beverage Control (ABC), restaurants, cafes, and snack shops. Some hookah bars also sell food (often pre-packaged) and/or beverages. Please note that the California Smoke-free Workplace Act – Labor Code 6404.5 does not make any distinction between the smoking of tobacco in cigarettes, pipes, or cigars. Unless an exemption applies, smoking tobacco in any form in an enclosed place of employment is a violation of the law.

In general, an indoor hookah bar falls within the restrictions of Labor Code Section 6404.5, the state law that prohibits smoking in virtually all enclosed workplaces. Smoking is prohibited in such hookah bars unless they fall under one of the Labor Code's exceptions.

In some communities, owners of hookah establishments claim they are exempt from Labor Code Section 6404.5 because they are 1) owner-operated businesses (and thus have no employees); 2) a retail tobacco store or a private smokers' lounge; or 3) a small business with five or fewer employees. All three of these exceptions are narrow, and depend on the specific facts.

LEGAL QUESTIONS: Can hookah bars claim an exemption to the law and allow indoor smoking of tobacco through a water pipe for any of the following reasons:

1. They are owner-operated?
2. They are retail tobacco shops?
3. They have five or fewer employees?

SUMMARY ANSWERS:

1) Owner-Operated Business Exemption
In order to avoid the smoking restrictions of Labor Code Section 6404.5 as an owner-operated business, the establishment truly must have no employees. Courts look carefully at how the business operates and have rejected 'sham' owner-operated businesses, for example, where each employee receives one share of stock in the company; or where the owner has placed all employees’ names on the business license as partners and part-owners in the business. If a person receives regular compensation, including tips, and must follow working instructions given by others, they are considered employees, even if they are family members.

2) Retail Tobacco Shop Exemption
In order for a hookah bar to be exempt from the Labor Code as a retail tobacco shop or private smokers' lounge, its "main purpose" must be the sale of tobacco products. LC 6404.5(d)(4)(B). Once a hookah bar sells food and/or beverages, it may no longer be selling tobacco as its main purpose, and no longer qualify as a tobacco shop. (In order to qualify as a "private smokers' lounge," a hookah bar would have to be an enclosed area in or attached to a retail or wholesale tobacco shop, so the same constraint regarding its main purpose would apply).

However, this is a gray area; a tobacco shop may be able to sell mints, gum, or even some pre-packaged food without changing its main purpose. The law does not state tobacco sales must be a store's sole purpose, or reflect a certain percentage of sales. Such incidental sales of food might not change a store's main purpose as a tobacco retailer under LC 6404.5(d)(4)(B).

One way to help determine the main purpose of a business that offers hookah pipes is to look at the business license. For example, if the hookah bar also sells alcohol then the business must have a license from ABC. If the business has an ABC license to sell alcohol, then its main purpose cannot be the sale of tobacco products. (See "Legal Parameters of the California Smoke-Free Workplace Law (Labor Code 6404.5)," by Barbara Solomon, et al, Deputy City Attorney, San Francisco). If the hookah “bar” does not sell alcohol, but sells food and/or non-alcoholic beverages, then it would not need an ABC license. However, most local governments require a business license. If the hookah bar’s business license is for a snack shop rather than a tobacco shop, and if food or beverages (such as coffee) are prepared on-site, the argument is stronger that the hookah bar’s main purpose is not the sale of tobacco products.

3) Small Business Exemption
In order for a hookah bar to be exempt from the smoking restrictions of LC 6404.5 as a small business it must have five or fewer employees and meet four conditions: (1) the smoking area is not accessible to minors; (2) all employees who enter the smoking area consent to the smoking; (3) air from the smoking area is exhausted directly to the outside by an exhaust fan; and (4) the employer complies with all applicable state and federal ventilation standards. LC 6404.5(d)(14). This exception is extremely narrow and does not apply to bars. (See 82 Ops. Cal. Atty. Gen. 190 (1999).)

A hookah bar may not arbitrarily exclude minors in order to meet the first condition. Many hookah “bars” are really part of restaurants or snack bars. Minors generally cannot be barred from these places because they have rights under the Unruh Civil Rights Act to enter a business unless it can legally be designated as an “Adult Only” establishment. (See 79 Ops. Cal. Atty. Gen. 8 (1996).) As a result, minors can often walk into places that sell hookah tobacco and may illegally ask to rent hookah pipes. Selling hookah tobacco to anyone 18 years old or younger is a violation of Penal Code Section 308. But if children can legally access a hookah bar or restaurant to purchase food or nonalcoholic beverages, then the business will not qualify for the small business exception to the Labor Code.

Related Law

Health and Safety Code

Another law that may apply to hookah bars is the California Health and Safety Code Section 114020(d), which states "No employee shall expectorate or use tobacco in any form in any area where food is prepared, served, or stored, or where utensils are cleaned or stored" (tobacco in any form). If an employee who sells food—whether prepackaged or not—is also handling or lighting hookah pipes, or offering tobacco to customers, a case could be made that this constitutes illegal use of tobacco under the Health and Safety Code.