February 24, 2011
By: John Kasprak, Senior Attorney
You asked for information on regulation of hookah lounges in the state.
A “hookah” is a waterpipe used to smoke “shisha,” a combination of tobacco and fruit or vegetable that is heated and the smoke is filtered through water. The hookah consists of a head, body, water bowl, and hose. The tobacco or shisha is heated usually using charcoal.
Hookah smoking is a centuries-old tradition and is often social, with two or more people sharing the same water pipe. If used in a commercial establishment, such as a café, lounge, or restaurant, the hookah is ordered, often from a menu of flavors and prepared from in-house stock.
Globally, the highest rates of use occur in the African region (primarily North Africa), the Eastern Mediterranean region, and the South-East Asia Region. Since the 1990s, hookah smoking has spread to new populations such as college students and young persons in the Unites States, South America, and Europe, according to the World Health Organization (WHO).
Hookah lounges are in business in a few Connecticut communities, with others being proposed. Some communities have denied individuals permits to operate such lounges. Concerns about the public health implications of hookah smoking as well as issues of planning and zoning have arisen. Hookah lounges are not specifically regulated by the state. Hookah lounges currently operating do not serve alcohol or food so as not to be in violation for the state's no smoking law.
HEALTH EFFECTS OF HOOKAHS
According to a 2005 WHO advisory, waterpipe tobacco smoking may expose the smoker to more smoke over a longer period of time than occurs when smoking a cigarette. The advisory report stated that “cigarette smokers typically take 8-12, 40-75 milliliter puffs over about 5-7 minutes and inhale 0.5 to 0.6 liters of smoke. In contrast, waterpipe smoking sessions typically last 20-80 minutes, during which the smoker may take 50-200 puffs which range from about 0.15 to 1 liter each. The waterpipe smoker may therefore inhale as much smoke during one session as a cigarette smoker would inhale consuming 100 or more cigarettes” (see “Advisory Note-Waterpipe Tobacco Smoking: Health Effects , Research Needs and Recommended Actions by Regulators, WHO Study Group on Tobacco Product Regulation, 2005, p. 3; attached).
The WHO advisory continues by noting that while water does absorb some of the nicotine, water pipe smokers can be exposed to a sufficient dose to cause addiction. The advisory cautions:
“it is likely that the reduced concentration of nicotine in the waterpipe smoke may result in smokers inhaling higher amounts of smoke and thus exposing themselves to higher levels of cancer-causing chemicals and hazardous gases such as carbon monoxide than if none of the nicotine was absorbed by the water; however this issue needs further study….This puts waterpipe smokers and second-hand smokers at risk for the same kinds of diseases as are caused by cigarette smoking, including cancer, heart disease,, respiratory disease, and adverse effects during pregnancy” (WHO Advisory, pp. 3-4).
STATE AND LOCAL REGULATION OF HOOKAH LOUNGES
Hookah lounges have or have attempted to open in a number of Connecticut municipalities over the past few years. While we do not have a complete list of hookah lounges operating in the state, lounges are currently operating in Fairfield, New Haven and West Hartford. A proposal for one in Tolland was denied , while a planned hookah lounge in Milford has generated controversy. The state Department of Public Health (DPH) does not issue any special permit or have regulations specifically applicable to hookah lounges.
Generally, a proposal to establish a hookah lounge invokes a town's planning and zoning regulations, as would be the case for any business seeking to operate in the municipality. Also, the local health department most likely will be involved in the ultimate decision whether to grant a permit to allow the lounge's operation. But whether approval is granted to such an enterprise has varied among the towns considering such proposals.
The Sky Hookah Lounge in Fairfield, which opened in 2009, was apparently the first such lounge in Fairfield County. Fairfield's health department told the lounge not to serve food or alcohol and approved the opening of the lounge after inspection. The local health department examined state and local regulations and determined that a hookah lounge could not have smoking and food service in the same enterprise. But without food and beverage, the lounge could remain open. But health officials did cite “gray areas” in the law as applied to hookah lounges.
The Mediterranea Café is an operating hookah lounge in New Haven on Orange Street. Because this lounge existed before Connecticut's smoking ban, it is allowed to sell hookah sessions as well as serve food. The lounge's website is http://www.mediterraneacafe.com/
Another New Haven hookah lounge is La Sheesh on Church Street.
A proposal to open a hookah lounge was recently considered by Tolland. Omar Rajeh, who owns two other hookah lounges in the state (including the Mediterranea in New Haven) applied for a special permit to open a hookah lounge in the town's Gateway Design District. This is a commercial district off Exit 68 of Interstate 84 (an exit for the University of Connecticut). A public hearing was first opened on the application in December 2010. The town's director of Planning and Community Development, Linda Farmer, noted that while food and drink cannot be served where smoking is permitted, there did not seem to be any prohibition from patrons bringing in their own food or drink. The planning and zoning commission then had to decide whether to include a hookah lounge as a business allowed by special permit in the Gateway District.
A number of residents cited reports of health risks related to smoking in opposing the special permit. The town's economic development chair was concerned that “the use is proposed for an existing structure housing retail, medical offices, food establishments, and a health and fitness club…possible smoke and odor could transfer through the ventilation exhaust and air intake systems” (“Hookah Lounge Nixed,” Tolland Patch, January 12, 2011). Others voiced concern about a business that would be targeted toward college students, particularly from UConn. The planning and zoning chair, Michael Cardin, and another commissioner reminded residents that the commission does not play a role in seeking out new businesses for the town. Rather, explained commission member Marilee Beebe, under the planning and zoning permit process, “any business can make an application and we are bound by law to hear it. We don't go out and try to cherry pick businesses to come into town. That's not our charge” (Tolland Patch article).
Ultimately, the Tolland planning and zoning commission agreed to add a definition of hookah lounges to the zoning regulations, but did not grant a special permit for such a use in its Gateway District. In a unanimous vote, the commission voted to deny the application, stating that such a business in the district would be adverse to the commission's authority and purpose clause in its regulations. It also found that the business would be inconsistent with the goods and services provided in the district.
In Milford, Sammer Karout has attempted, over the past two years, to open a hookah lounge next to a restaurant he owns in a shopping plaza. When the lounge first opened two years ago, city health officials inspected the business and ordered it closed over concerns that sharing of the waterpipes was unsanitary and that the charcoal-fired heaters in the pipes could cause a dangerous buildup of carbon monoxide. Since that time, Karout has twice appealed local health officials' orders to DPH which upheld the business owner. Karout has agreed to use only nonporous, disposable hoses and pipes with only one mouthpiece, so that two users cannot share a pipe. Pipes are cleaned with bleach, scrubbed with brushes, and air- dried. Only those 18 and older will be allowed in and no food or alcohol will be served. (see “Businessman Continues fight to Open Hookah Lounge”, Connecticut Post, December 11, 2010).
The Milford planning and zoning board has determined that the lounge needed a special permit to operate. At issue is the number of parking spaces required by the business. The shopping plaza already has a bar, restaurant, pizza parlor, laundromat, bookstore, and Karout's deli. Those existing businesses should have 100 parking spaces among them, but only have 72 at present. Milford's city planner said that the hookah lounge requires 40 more spaces. Some of the spaces the hookah lounge plans to use are not on the same property and others are in a state right of way. Apparently, there will be a five year lease for those spaces from the state Department of Transportation.
At a February 15, 2011 meeting, the Milford planning and zoning board did not issue the special permit and instead decided to wait two weeks for final parking calculations and a lighting plan.
CONNECTICUT'S NO-SMOKING LAW AND HOOKAH LOUNGES
As noted above, towns that permit hookah lounges to operate do not allow food and liquor to be served on the premises. This appears to be based on Connecticut's no smoking laws (CGS §§ 19a-342 and 31-40q).
Connecticut's no smoking law bans smoking in all restaurants, cafés and taverns (bars). Private clubs (i.e. VFW halls, Knights of Columbus, the Hartford Club, etc.) that had liquor permits as of May 1, 2003 are exempt from the law (CGS § 19a-342(b)(1)).
Tobacco bars, as defined as an establishment with a permit pursuant to Chapter 545 (liquor permits) that made at least 10% of its gross annual income on tobacco products and have not changed their size or location since December 31, 2002, are exempt from the law. “Tobacco product” means any substance that contains tobacco, including cigarettes, cigars, pipe tobacco or chewing tobacco (CGS § 19a-342(b)(2)(G)).
Smoking is also prohibited in establishments with the following liquor permits: university, hotel, resort, restaurant, juice bar, railroad, airline, coliseum, special sporting facility, nonprofit theater, nonprofit public museum, bowling establishment, racquetball establishment, and airport restaurant (CGS § 19a-342 (b)(1)).
The law bans smoking in any business (other than food establishments) with 5 or more employees, except that there may be a designated smoking room for employees. Businesses with fewer than 5 employees must provide a smoke free environment upon request from an employee (CGS § 31-40q).
SUGGESTED REGULATORY ACTIONS-WHO STUDY GROUP
The WHO Study Group on Tobacco Product Regulation recommends consideration of the following to reduce water pipe smoking and associated disease:
1. waterpipes and waterpipe tobacco should be subjected to the same regulation as cigarettes and other tobacco products;
2. waterpipes and waterpipe tobacco should include strong health warnings;
3. misleading labeling, such as “contains 0 mg tar,” which may imply safety, should be prohibited;
4. waterpipes should be included in comprehensive tobacco control efforts, including prevention strategies and cessation interventions;
5. waterpipes should be prohibited in public places consistent with bans on cigarettes and other forms of tobacco smoking; and
6. education of health professionals, regulators, and the public is needed about the risks of waterpipe smoking, including high potential levels of second hand exposure among children, pregnant women, and others.