State of California-Health and Human Services Agency

Department of Health Services

September 23, 2003

Diana Bonta, R.N., Dr. P.H.

To: LOCAL HEALTH OFFICERS, LOCAL ENVIORNMENTAL HEALTH DIRECTORS

SUBJECT: HOOKAH BARS AND THE NEED TO ENFORCE LABOR CODE SECTION 6404.5

The recent popularity of hookah bars and restaurants in California raises both legal and public health concerns. From the public health perspective, these establishments contribute to health problems related to tobacco use. From the legal perspective, many hookah bars and restaurants are out of compliance with Labor Code (LC) Section 6404.5, the California Smoke-free Workplace Act, which makes indoor smoking in virtually all hookah bars and restaurnants illegal. To help address both sides of this problem, I encourage you to actively enforce LC Section 6404.5 in hookah bars and restaurants.

A hookah is a water pipe that originated India. It is also referred to as a Nargile, Shisha, or "Hubble Bubble" pipe, or Turkish water pipe. Tobacco is burned in a bowl and the smoke is drawn through a water container that is designed to cool and filter the smoke. The smoked product is a combinateion of tobacco, molasses, and flavors such as strawberry, apricot, mango, banana, grape, double apple, and mint. The pipes are passed arount to patrons, who use separate mouthpieces to inhale the tobacco. The use of hookah pipes is not considered a safe alternative to cigareete smoking. Smoking hookah pipes has been reported to cause oral, esophageal, and lung cancer, as well as heart disease and nicotine addiction. Law enforcement agencies should be aware of the proliferation of hookah bars and restaurants and recognize when they are operating illegally.

There are only two circumstances in which indoor smoking in a hookah bar or restaruant would be allowed under state law:

1. The establishment qualifies as a "retail or wholesale tobacco shop." LC Section 6404.5 defines a retail tobacco shop as "any business establishement the main purpose of which is the sale of tobacco products, inlcuding, but not limited to, cigars, pipe tobacco, and smoking accessories" (main purpose). If a hookah bar also sells or serves food or beverages, allows food or beverages to be brought into the establishment for consumption, or provides live entertainment, it does not qualify as a retail or wholesale tobacco shop as defined by state law and would violate LC Section 6404.5. In addition, a private smokers lounge referred to in LC Section 6404.5 may only be operated if it is located within or is attached to a retail or wholesale tobacco shop. A hookah bar that does not qualify as a retail or wholesale tobacco shop may not operate an indoor private smokers lounge.

2. The establishment is owner-operated and has no employees. A hookah bar or restaurant that is owener-operated, that is, does not have employees, is exempt from LC Section 6404.5 and may permit smoking under state law. Such an owner-operated establishment would not have any part-time employees, live entertainment such as belly dancing, or janitorial services. Once there is any employee at the establishment, it would not be exempt from LC Section 6404.5. Furhtermore, if an employee is smoking, he or she can also be cited under Health and Safety Code Section 114020(d), pertaining to employees use of tobacco where food is prepared, served, or stored, or where utensils are cleaned or stored. In all other circumstances, hookah bar or restaurants owners and patrons may be cited under LC Section 6404.5 for unlawfully smoking in an indoor workplace.

Under state law, smoking is allowed only in outdoor areas. However, outdoor smoking (e.g., patios) may be restricted by local ordinances.

Hookah pipe smoking is not a safe alternative to cigarettes, and your cooperation in enforcing LC Section 6404.5 as it pertains to hookah bars and restaurants is needed and appreciated.

For further information, please contact your local health departments tobacco control program or Bar and Restaurant Employees Against Tobacco Hazards (BREATH), the California Smoke-free Bars, Workplaces, and Communities Program, at (916) 739-8925.

Diana M. Bonta, R.N., Dr. P.H.

Director