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M E M O R A N D U M TO: Professor Kathleen Dachille and Michael Strande FROM: Margalit Weinblatt and Rachel Grunberger RE: Hookah Bars in Maryland DATE: April 24, 2007 ----------------------------------------------------------------- This memorandum focuses on the probable impact of the Maryland Clean Indoor Air Act of 2007 (CIA) on hookah bars in Maryland. First, we identify and describe the culture of existing hookah bars in our state. Next, we address the damaging health consequences of hookah smoking, despite a widespread and pernicious misconception that hookah smoking is somehow less harmful than cigarette smoking. Third, we review the provisions of the CIA and predict that most Maryland hookah bars will likely evade the smoking ban, either permanently through the tobacco retail exemption or temporarily through a hardship waiver. Fourth, however, we demonstrate that local county boards of health and local legislative bodies have existing authority to regulate hookah bars and should be at the forefront of control efforts. Finally, we recommend several steps that county boards of health should consider taking to reduce hookah smoking and its associated health risks in Maryland. I. Hookah Bars in Maryland There are six hookah bars in the State of Maryland. These include: Prince Café in College Park; Zeeba Lounge in Baltimore City; Three Kings of Egypt in Baltimore City; Mirage Café and Grill in Frederick; Huckas in Baltimore City; and Ice Hookah Lounge in Towson. These bars are primarily populated by Americans of Middle Eastern descent and college students. 1 The hookah bars market themselves as hip lounges. 2 For example, Ice Hookah Lounge, popular among Towson-area college students 3 promotes the lounge as creating the coolest smoking experience possible. 4 Moreover, the term Ice, is the slang term for illicit street drugs. 5 1 See, e.g., Brian Stelter, Towson Hooked on Hookah, THE TOWERLIGHT, January 28, 2007; Hookah Bar and Lounge Directory, http://www.hookahculture.com/hookah_lounges.htm (last visited April 9, 2007); see also Barry Knishkowy & Yona Amitai, Water-Pipe (Narghile) Smoking: An Emerging Health Risk Behavior, 116 PEDIATRICS e113, e113 (July 2005) (noting that there has been a revival of the hookah trend among the youth culture). 2 See Loni Ingraham, New Towson hookah lounge the place to be at 3:30 a.m., TOWSON TIMES, December 7, 2006. 3 Towson-area colleges include: Towson University, Loyola College, College of Notre Dame of Maryland, and Goucher College. 1

Hookah bars typically emphasize the experience of smoking a hookah and equate this with experiencing another culture. For example, Arabic décor and Arabic music are often present in these lounges to help create the experience. At least two of the bars offer belly dancing performances as well as belly dancing classes. 6 Additionally, some of the bars market themselves as intellectually stimulating and relaxing environments where individuals can play games such as chess, backgammon and dominoes. 7 Many of these bars also try to empower the customer to be fully involved in the experience by allowing the patron to first select from which hookah she would like to smoke. For example, Ice Hookah Lounge allows customers to upgrade from the standard rotating single hose hookah to either a rotating double or the 35" quadruple hose hookah. Then, the customer can choose from an assortment of flavors. Many bars offer over 40 flavors. Ice Hookah for example, breaks the menu into traditional flavors such as Pear or Apple, exotic flavors such as Jasmine or Watermelon, and interfusion flavors such as Bahama Mama (a mix of Pineapple, Coconut and Mango) or Summer s Eve (a mix of Strawberry and Kiwi). The hookah bars are open late, usually until 4 a.m. on the weekends, and many of these lounges market themselves as the place to be after hours. 8 Because they generally do not serve alcohol (with the exception of Mirage Café in Frederick and Huckas in Baltimore City), they are not regulated by the last call rules for alcohol establishments. 9 One of the bars notably offers a health warning on its web site and menu 10 as well as a tobacco-free alternative. 11 4 Ice Hookah Lounge, http://icehookahlounge.com/home.html (last visited April 19, 2007). 5 Urban Dictionary, http://www.urbandictionary.com/ (last visited April 9, 2007). 6 Hookah Bar and Lounge Directory, http://www.hookahculture.com/hookah_lounges.htm (last visited April 9, 2007); Zeeba Lounge, http://www.zeebalounge.com (last visited April 9, 2007). 7 See, e.g., Hookah Bar and Lounge Directory, http://www.hookahculture.com/hookah_lounges.htm (last visited April 9, 2007). 8 Id. 9 Telephone Interview with employee of Mirage Café and Huckas (April 6, 2007). 10 Ice Hookah Lounge includes the following health warning: smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy. Ice Hookah Lounge, http://icehookahlounge.com/home.html (last visited April 19, 2007). However, above the health warning, the hookah bar misinforms customers by stating that the tobacco in hookahs is less dangerous than that in cigarette smoke because fewer chemicals are present and the water filters out the nicotine. See id. 11 The tobacco-free shisha contains herbs without the addition of nicotine or tobacco. Telephone Interview with Employee of Ice Hookah Lounge (April 22, 2007); see also, e.g., Shisha Pipe, http://www.shishapipe.net/highlifeherbalsmoke.htm (last visited April 23, 2007) (selling tobacco free shisha). Some cities and provinces in Canada allow hookah bars to remain open in spite of the smoking bans, provided that the bars only offer tobacco-free shisha. Colette Derworiz, Tobacco-free smoking allowed in shisha bars, CALGARY HERALD, Feb. 13, 2007. 2

II. Health Consequences of Hookah Smoking A. Smoking a Hookah is as Toxic as Smoking a Cigarette Although research on the health consequences of smoking a hookah is limited, studies have linked several significant health risks to smoking a hookah. 12 These risks include cardiovascular disease, clogged arteries and lung, oral, lip and bladder cancer. 13 Similar to a cigarette, hookah smoke contains the addictive drug nicotine. 14 Therefore, the more frequently a person smokes a hookah, the more likely that she will become addicted. 15 Hookah users often claim that hookah smoking is safe because the water at the base of the hookah absorbs the nicotine, resulting in minimal exposure to the addictive and deadly drug. 16 However, although the water does absorb some of the nicotine, a hookah user can still be exposed to enough of the drug to cause addiction. 17 Once addicted, users will smoke until their nicotine need is satisfied. 18 Accordingly, although there are reduced concentrations of nicotine in a hookah, a user will inhale higher amounts of smoke to satisfy their addiction than if the water did not absorb the nicotine, resulting in increased levels of exposure to cancer-causing chemicals and hazardous gases. 19 Generally, an average hookah session lasts 40 to 45 minutes. 20 This is in contrast to a person who smokes a cigarette, which usually takes an average of 5 to 10 minutes. 21 There are however several problems with the tobacco-free alternative. First, the user will still be exposed to dangerous chemicals such as carbon monoxide and metals from the heat sources that burn the tobacco-free flavor; second, the user will most likely be smoking from a pipe that has remnants of the tobacco, negating the notion of a tobacco-free alternative; and finally, the user is still exposed to secondhand smoke from those who are smoking a tobacco substance. Telephone Interview with Dawn Shiflet, Customer Service Representative, American Lung Association in Baltimore, Md. (April 19, 2007). 12 American Lung Association, An Emerging Deadly Trend: Waterpipe Tobacco Use, at 2 (February 2007) [hereinafter American Lung Association Report]. 13 Id., W Maziak et al, Tobacco Smoking Using a Waterpipe: A Re-emerging Strain in a Global Epidemic, 327, 330 (BMJ Publishing 2004); Knishkowy, supra note 1, at e116. 14 World Health Organization, WHO Advisory Note: Waterpipe Tobacco Smoking: Health Effects, Research Needs and Recommended Actions by Regulators, at 3 (WHO 2005) [hereinafter WHO Report]. 15 Id. 16 E.g., American Lung Association Report, supra note 12, at 3; Ice Hookah Lounge, http://icehookahlounge.com/home.html (last visited April 19, 2007). 17 WHO Report, supra note 14, at 3. 18 Id. 19 Id. at 3-4. Additionally, contrary to popular belief, the water only filters out a small portion of the harmful substances. Knishkowy, supra note 1, at e115. 20 American Lung Association Report, supra note 12, at 2. 21 Id. 3

Because of the duration of the session, a hookah smoker may inhale the equivalent of 100 cigarettes during a single sitting. 22 Studies comparing the effect of a single cigarette to 45 minutes of waterpipe use suggest that a hookah smoker doubles his carbon monoxide exposure and triples his nicotine exposure, thereby intensifying the effects of the smoke. 23 Additionally, the heat sources used to burn the tobacco increase the dangers of hookah smoke to the user because chemicals such as carbon monoxide and heavy metals such as lead are released when charcoal or cinder is burned. 24 Further, secondhand smoke from the hookah is also dangerous because there exists two points of origination for the smoke from the tobacco itself and from the heat source used to burn the tobacco. 25 B. Smoking a Hookah Increases the Risk of Exposure to Infectious Diseases and Other Ailments Studies suggest that the moist smoke and the shared mouthpiece allow for the spread of such deadly diseases as tuberculosis, hepatitis, herpes, as well as more common viruses such as a cold or the flu. 26 One article reported instances in which groups of individuals developed tuberculosis from sharing a hookah. 27 Case studies suggest that hookah smoking also exposes smokers to other ailments such as eczema of the hand, dry socket following tooth extraction, and periodontal disease. 28 The American Lung Association and the World Health Organization report that although more studies need to be conducted on the effects of hookah smoking, the present research on the chemistry of the smoke inhaled and the effects of that smoke combined with the preliminary research on patterns of smoking, indicate that hookah 22 Id. 23 Maziak, supra note 13, at 329. 24 American Lung Association Report, supra note 12, at 2-3; WHO Report, supra note 14, at 5; Maziak, supra note 13, at 329. 25 American Lung Association Report, supra note 12, at 3. Commonly used heat sources include wood cinders or charcoal. Id. When burned, these products emit high levels of dangerous chemicals, such as carbon monoxide and metals. Id. at 3-4. 26 Id. at 3. Other infectious diseases include aspergillus, a fungus known to cause serious lung infections, and helicobacter, a bacteria that causes stomach ulcers. American Cancer Society, Child and Teen Tobacco Use, http://www.cancer.org/docroot/ped/content/ped_10_2x_child_and_teen_tobacco_us e.asp (last visited April 19, 2007). There has also been speculation that viruses such as Epstein-Barr, HIV and respiratory viruses may be spread through the shared use of a water pipe. Knishkowy, supra note 1, at e117. 27 Maziak, supra note 13, at 330. 28 Id. at 331; American Academy of Periodontology, Avoid the Hookah and Save your Teeth, SCIENCE DAILY, November 10, 2005. 4

smoke holds many of the same risks and dangers that are present in cigarette smoke. 29 Moreover, the existing research indicates a causal link between hookah use and addiction, disease and death. 30 III. Impact of the CIA on Hookah Bars in Maryland Given that the health consequences of hookah smoking are equal to if not worse than the dangers of cigarette smoking, one might expect that the impending statewide smoking ban in bars and restaurants would apply to hookah bars. On April 9, 2007, the Maryland General Assembly passed the Maryland Clean Indoor Air Act of 2007 (CIA). 31 Gov. Martin O Malley, a strong supporter of the smoking ban, has pledged to sign the bill. 32 The CIA will prohibit smoking in the majority of indoor places, most notably in restaurants and bars. 33 The purpose of the law is to protect the public and employees from involuntary exposure to environmental tobacco smoke in indoor areas open to the public, indoor places of employment, and certain designated private areas. 34 The CIA, however, exempts certain establishments homes, automobiles, hotels, motels, and tobacco retail businesses from the statewide ban. 35 Additionally, the CIA includes a process by which businesses can obtain a waiver from a county board of health. 36 Although a contentious issue during the legislative debates, the final version of the CIA does not include an exemption for private clubs like the American Legion and 29 American Lung Association Report, supra note 12, at 3. Current research states that studies on the health effects of hookah smoking are often hard to conduct due to the fact that many hookah smokers also smoke cigarettes. Maziak, supra note 13, at 330. 30 Id. at 331. 31 S.B. 91, 2007 Leg., 423rd Sess. (Md. 2007). Prior to the CIA s passage, five Maryland counties (Charles, Howard, Montgomery, Prince George s, and Talbot) and Baltimore City passed smoking bans. Md. Dep't of Legis. Serv., Fiscal and Policy Note on SB 91, 2007 Leg., 423rd Sess. (Md. 2007), available at http://mlis.state.md.us/2007rs/fnotes/bil_0001/sb0091.pdf. 32 Kelly Brewington, Andrew A. Green & Laura Smitherman, State OKs Statewide Smoking Ban, BALTIMORE SUN, April 6, 2007, at 1A. While the bill will become law on Oct. 1, 2007, it will not become effective until February 1, 2008, to allow the Department of Health and Mental Hygiene to promulgate regulations pertaining to hardship waivers. Andrew A. Green, Assembly Finalizes Statewide Smoking Ban, BALTIMORE SUN, April 9, 2007; see also infra note 45 and accompanying text. 33 S.B. 91, 2007 Leg., 423rd Sess. (Md. 2007). 34 Id. 35 Id. 36 Id.; see also infra notes 43-48 and accompanying text (discussing the requirements for a hardship waiver). 5

Veterans of Foreign Wars. 37 Further, unlike certain other state smoking bans, the CIA does not specifically exempt tobacco bars or cigar lounges. 38 Thus, the primary question is whether the six hookah bars in Maryland will be subject to the smoking ban or will qualify for a tobacco retail exemption or a hardship waiver. As the American Lung Association recently reported with regret, smokefree air laws seem to have had the opposite effect on hookah establishments, bolstering them as they are often unaddressed or exempted from many laws. 39 Maryland hookah bars that do not sell food or alcohol will likely be able to permanently avoid complying with the CIA. Even if the tobacco retail business exemption is inapplicable, hookah bars in our state will probably be able to obtain a temporary waiver for financial hardship. Each option will be discussed in turn. A. Tobacco Retail Business Exemption Under the CIA, an establishment qualifies for the tobacco retail business exemption if its primary activity is the retail sale of tobacco products and accessories; and... the sale of other products is incidental. 40 Although all of the local hookah bars have a strong argument that their primary activity is the sale of tobacco products, some might have a more difficult time establishing that the sale of other products is incidental. For example, Mirage Café and Huckas both sell alcohol. Unlike other states, the CIA does not include a percentage cap for example, 25% on the total annual revenues from the sale of non-tobacco products, 41 which allows for a bright-line determination of what constitutes incidental. Therefore, the exemption determination under Maryland law will be a question of fact and will have to occur on a case-by-case basis. However, hookah establishments that only serve hookahs on the menu and do not sell food or alcohol will likely be able to permanently circumvent the CIA through the tobacco retail business exemption. Interestingly, hookah bars that qualify for the tobacco retail business exemption must post signs that state smoking permitted in this room. 42 B. Hardship Waivers Even if a hookah bar is not exempt as a tobacco retail business, the hookah bar may still be able to avoid the CIA s smoking ban by obtaining a waiver. The CIA 37 Brewington et. al, supra note 32, at 1A; Laura Smitherman, Smoking Ban May Soon Clear the Air, BALTIMORE SUN, March 23, 2007, at 1B. 38 See, e.g., MASS GEN. LAWS ch. 270, 22 (2004) (exempting smoking bars in addition to providing a separate tobacco retail exemption). 39 American Lung Association Report, supra note 12, at 4. 40 S.B. 91. 41 See, e.g., R.I. GEN LAWS 23-20.10-2 (2004) (defining a retail tobacco store as a retail store utilized primarily for the sale of tobacco products and accessories in which the total annual revenues generated by the sale of other products are no greater than twenty-five percent... of the total revenue for the establishment ). 42 S.B. 91. 6

permits establishments that are generally recognized as bars or taverns to request waivers, and allows county health officers to grant such requests if [c]ompliance with the provisions of [the CIA] causes undue financial hardship [or other] factors exist that render compliance with [the CIA] unreasonable. 43 This waiver mechanism was also the subject of heated debates as the CIA traversed the legislative process. 44 Ultimately, as a result of a legislative compromise, the Department of Health and Mental Hygiene was charged with developing waiver rules 45 and county health officials will actually issue the waivers. 46 Hookah bars are likely to take advantage of the hardship waiver option. 47 A prediction as to whether individual hookah establishments will qualify for a waiver will depend greatly on the specific regulations that are developed and the amount of discretion afforded to county health officers. From a tobacco control standpoint, however, Maryland s waiver provision is more promising than other states with waiver processes because all waivers will expire on Jan. 31, 2011. 48 Note that the existence of the CIA does not prevent local communities from cracking down on hookah bars through local ordinance. A handful of cities have already targeted hookah bars in various ways, including: Anaheim, California; Galt, California; Fort Collins, Colorado; and Athens, Ohio. For example, the Galt City Council closed a gap in the California smoking ban when it passed an ordinance prohibiting smoking in smoking bars and tobacco shops, in order to discourage hookah use. 49 In Athens, Ohio, the City Council passed an ordinance requiring hookah establishments to post the following sign: Warning Hookah smoking causes lung cancer, heart and other diseases and cancers. Hookah tobacco contains nicotine, and hookah smoking is not a safe alternative to cigarettes. 50 Finally, in Anaheim, California, the City Council aimed to reduce the number of hookah bars by requiring owners to secure a permit. 51 The Anaheim ordinance bans drinking, live music, and dancing (including belly dancing) unless hookah bar owners acquire a special and more expensive permit. 52 IV. Local Authority to Regulate Hookah Bars 43 Id. 44 Brewington et. al, supra note 32, at 1A. 45 Green, supra note 32, at A1. 46 Laura Smitherman & Kelly Brewington, Debate Smolders as Ban on Smoking Looms in Md., BALTIMORE SUN, April 11, 2007. 47 American Lung Association Report, supra note 12, at 5. 48 Green, supra note 32, at A1; see also American Lung Association Report, supra note 12, at 7 (reporting that New York and the District of Columbia s smokefree laws contain financial hardship waivers). 49 Dan Nguyen, Hookahs Draw Fire on Galt Council, SACRAMENTO BEE, July 24, 2006. 50 ATHENS, OH, CITY CODE, An Ordinance Amending Athens City Code, Title 9, General Regulations, Chapter 9.13, Clean Indoor Air (2005). 51 Gillian Flaccus, Law May Shackle Hookah Bars, MIAMI HERALD, Oct. 28, 2005, at A. 52 Id. 7

Although Maryland hookah bars may avoid the statewide smoking ban through the tobacco retail business exemption or waivers, county boards of health and local legislative bodies nevertheless possess the regulatory authority to reduce or eliminate the health risks posed by hookah smoking. County boards of health can use existing regulatory authority to target hookah bars as nuisances. Maryland s statutory structure indirectly requires every county to set up a board of health, thereby delegating its public health police power to every county and Baltimore City. 53 Under Maryland law, each county governing body is made ex officio the board of health for the county. 54 Primarily, county boards of health enforce state policies, laws, rules, and regulations adopted by the Secretary of Health. 55 Additionally, the county boards of health are themselves empowered to adopt and enforce rules and regulations on any nuisance or cause of disease in the county. 56 Individual counties can also use local legislative power to combat hookah bars. Maryland counties and Baltimore City govern either as commissioner, charter, or code home rule counties. 57 In commissioner counties, 58 county commissioners have the express power to prevent and remove nuisances; to prevent the introduction of contagious diseases into the county;... [and] to approve the location of... all places which may involve or give rise to unsanitary conditions or conditions detrimental to health. 59 Charter counties 60 also have the express power to prevent, abate and remove nuisances. 61 Code home rule counties 62 lack elected councils or charters but can 53 Maryland Association of Counties, Forms of Government in Maryland, available at http://www.mdcounties.org/counties/forms_of_government.cfm (last visited April 9, 2007); see also Fowler v. Board of County Com rs of Prince George s County, 230 Md. 504, 507, 187 A.2d 856, 858 (1963) ( [W]hen the Legislature delegates the police power with respect to the public health to a political subdivision, its governing body to the extent of the grant is invested with the sovereign power of the State; and when it acts, or fails to act, under that power, it does so in a governmental capacity. ). 54 MD. CODE ANN., HEALTH-GEN. 3-201 (LexisNexis 1982). 55 Id. 3-202(a)(1), 3-306(c)(4). 56 Id. 3-202(d). 57 Forms of Government in Maryland, supra note 53. 58 Commissioner counties are not able to legislate on local issues without the permission of the Maryland General Assembly. Id. Calvert, Carroll, Cecil, Frederick, Garrett, St. Mary's, Somerset and Washington counties are commissioner counties. Id. 59 MD. CODE ANN., art. 25, 3(n) (LexisNexis 1982). 60 Charter counties are those with a formal charter outlining the structure of the county government. Forms of Government in Maryland, supra note 53. Of the ten charter counties in Maryland, eight have split the executive and legislative powers between an elected executive and elected council, while two have an elected council with an administrator which keeps exclusive executive and legislative power. Id. The charter counties are: Anne Arundel, Baltimore City, Baltimore County, Dorchester County, Harford, Howard, Montgomery, Prince George's, Talbot, and Wicomico. Id. 61 MD. CODE ANN., art. 25A, 5(j) (LexisNexis 1982). The commissioner and charter provisions are identical except for the word abate, which is included in the charter provision. See id. 8

legislate under the same express powers as charter counties, which would include the authority to regulate nuisances. 63 Thus, county boards of health and local legislative bodies are empowered to regulate hookah bars as nuisances and places that give rise to conditions detrimental to health. Both should target such hookah bars because hookah smoking causes the same diseases and other deleterious health consequences as cigarette smoking. 64 V. Recommendations Because the CIA will probably not reduce or eliminate hookah smoking in Maryland, county boards of health should take charge of regulating hookah bars and protecting citizens health. To that end, county boards of health should consider taking the following steps: Launch a campaign to educate citizens living in jurisdictions with hookah bars about the health risks of hookah smoking and work to correct the widespread misperception that hookah smoking is less harmful than cigarette smoking. 65 In particular, target local college campuses (like those in the Towson-area and College Park) because hookah smoking is especially popular among college students. 66 Adopt a stringent approach to granting hardship waivers under the CIA. Of course, this option will depend on the amount of discretion that the Secretary of Health leaves to county health officials when developing guidance on hardship waivers. 67 Establishments that receive hardship waivers should be required to post conspicuous warning signs and prohibit the admission and employment of individuals who are under the age of 18, as detailed in the next two recommendations. 62 The code home rule counties (where the the county voters have approved home-rule power for the commissioners ) are Allegany, Caroline, Charles, Kent, Queen Anne, and Worcester. Forms of Government in Maryland, supra note 53. 63 See id. (describing the functioning of code home rule counties); see also MD. CODE ANN., art. 25B (LexisNexis 1982). 64 See supra Part II (detailing the significant health risks involved in hookah smoking). 65 See Monica Eng, It s Ok to Inhale, CHICAGO TRIBUNE, Sept. 21, 2006, at 1 (reporting that many hookah smokers believe the practice is safer than cigarette smoking and offering a statement from the president of the American Lung Association of Metropolitan Chicago refuting that perception); see also WHO Report, supra note 14, at 7 ( Education of health professionals, regulators, and the public at large is urgently needed about the risks of waterpipe smoking, including high potential levels of secondhand smoke exposure among children, pregnant women, and others. ). 66 See supra notes 1-3 and accompanying text (describing the appeal of hookah smoking to college students and listing Towson-area colleges). 67 See Green, supra note 32. 9

Require that all hookah bars post prominent warning signs about the harmful effects of hookah smoking, like the Athens, Ohio ordinance. 68 Also, mandate the inclusion of similar warnings on all marketing materials, including newspaper advertisements, websites, and menus. Through regulation, limit the hours of operation for all hookah bars and require all employees and customers to be over the age of 18. 69 Regulations can further compel hookah establishments to ensure age verification by requiring identification upon entry. Preventing hookah bars from being the place to be after hours will reduce customers and employees exposure to the dangers of hookah smoke. Through regulation, require all hookah bars in Maryland to obtain special permits in order to operate, like the ordinance in Anaheim, California. 70 Curtail the spread of infectious diseases such as hepatitis, herpes and tuberculosis, by requiring that hookah bars provide individually packaged disposable mouthpieces to their customers. 71 This way, each customer can place the mouthpiece over the hose to prevent the spread of disease. However, individual mouthpieces will probably not overcome the problem entirely because respiratory droplets can still be deposited within the mouthpiece tubing and diseases can still be transferred in part due to the moist smoke created by the heat. 68 See ATHENS, OH, supra note 50. 69 Currently, hookah bars determine their own hours. See, e.g., Stelter, supra note 1. 70 See Flaccus, supra note 51, at A. 71 Some bars already provide hookah smokers with disposable mouthpieces. Cristen Kis, Hookah Cafes Popular, PRESS & GUIDE, March 14, 2007. 10