Hookah lounges were on the agenda at the Eastern Area communities planning group meeting on April 11. Specifically, the lack of regulatory teeth the police have when it comes to the new version of old-world smoking dens so prolific in downtown and eastern San Diego.
Debra Kelley, American Lung Association advocacy director, discussed a head scratching conundrum when she pointed out that while restaurants and bars aren’t allowed smoking on their premises, hookah lounges are allowed to serve food and alcohol.
What’s to stop any restaurant or bar from allowing smoking? “It’s just perception at this point. If the same standards were applied to bars and restaurants that are applied to hookah and cigar lounges, then a restaurant or bar could obtain a tobacco retailer permit — and some bars have done so in San Diego — and then permit smoking indoors. Of course, if a bar or restaurant did that, there would be an outcry and immediate recognition that what they were doing is illegal. Yet that doesn’t happen with hookah lounges due to the perception that they’re different and exempt. The bottom line is tobacco is tobacco is tobacco.”
Kelley said that in 1994 before the rise of cigar and hookah lounges, the definition of a tobacco retailer was a bit vague. She said when the first cigar lounge opened in downtown, it appeared to qualify for an exemption which set a precedent. In 2008, the California legislative counsel issued an opinion that smoking lounges weren’t exempt if they served alcohol. In 2011, the California attorney general issued an opinion that if the establishment sells any non-tobacco products (food, alcohol, etc), it can’t qualify for the exemption.
Kelley said that San Diego didn’t get the memo and this has directly led to the surge of local hookah lounges. “Their sheer number began to create the perception that hookah lounges were exempt from the law.”
As far as skirting the workplace smoking laws, Kelley said that some lounges claim an exemption because they only hire family or have less than five employees. This point is neither here nor there, said Kelley, since in 2016 the California legislature removed all such exemptions.
Kelley said that hookah lounges that are willing to skirt this law may break others. Case in point is downtown’s Phantom Lounge and Nightclub. Signs were posted on their front door on April 13 stating that their alcohol license had been suspended. John Carr from Alcoholic Beverage Control said it was suspended because they weren’t compliant with the Type 47 license requirement to operate as a bona fide restaurant.
So, which rules have the upper hand — tobacco or alcohol? “In theory, tobacco rules, because there are, at least, clear opinions from the legislative counsel and attorney general that permitting indoor smoking is illegal if alcohol is served.” Kelley went on to say that the city attorney’s office has instructed police that the current tobacco retailer permit ordinance doesn’t permit the police to deny, suspend or revoke a permit for allowing indoor smoking and serving alcohol.
On April 26, Kelley will be testing the waters at an administrative hearing to oppose downtown’s Art Hookah Lounge from acquiring a liquor license. In April 2015, Kelley did the same with Mazzika Hookah in Kearny Mesa. Beverage Control disregarded the argument that Mazzika was in violation of workplace smoking laws. Though, according to beverage control records online, Mazzika withdrew their application in March 2016.
Part of the disconnect is that while the city issues tobacco permits, the state issues liquor licenses. Carr said that his agency doesn’t track which hookah lounges have liquor licenses because smoking laws aren’t an issue when it comes to liquor licenses.
I checked in with the county’s air pollution control district to get their take. Cynthia Gould said they have no rules pertaining to hookah lounges, but will respond to air quality complaints about them. There have only been two, said Gould (2013 and 2015). Both were lodged toward downtown’s Med Café hookah lounge. The county was never able to document the alleged odors.
On April 26, Kelley will attend the police department’s annual presentation of their tobacco program report. “The police deserve a giant gold star, they have tried so hard to work with us but are having to fight with one hand tied behind their back when it comes to regulations.”
As of 2015, hookah permit applications go through the city treasurer, but the police department still approves or denies them.
I asked both the police and the city if they had a list of permitted hookah bars. Officer Billy Hernandez didn’t have a list for me, but did say that presently there are 51 hookah lounges on file. He also said that in 2016, the city had 1056 new or renewal tobacco applications. As far as how many hookah lounges serve alcohol, Hernandez said they don’t track this.
The city also doesn’t track this per Paul Brencick. He said that several years ago development services determined that hookah lounges are similar in nature to retail smoke shops, so this is how they are classified in the city’s code.
Saturation is another issue for Kelley. “Hookah lounges tend to cluster in certain neighborhoods. Way out in Scripps Ranch there is one, but downtown has a ton of them. At one point, there were ten of them within a six square block area. East San Diego is also impacted by many of these hookah lounges in a close proximity to each other.”
Case in point is right across the street from Art Hookah where a banner announces that “LA’s hottest hookah lounge” is coming. Kelley recognized the name: Blue Moon Hookah. She testified against their neighborhood use permit in 2016. “It’s interesting that their application called for not serving alcohol, though I seem to remember the applicant saying he wanted to run a nightclub for 18- to 20-year-olds. At the time of the hearing it was legal for that age group to buy hookah. Now it isn’t.”