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Vaping Lounge, Hookah Bar and Tobacco Sales Regulation by City Ordinance

Vaping Lounge, Hookah Bar and Tobacco Sales Regulation by City Ordinance

Many Texas cities have ordinances on their books that regulate or even prohibit shops that sell tobacco and tobacco products. Recently, however, new types of shops have popped up, calling themselves “hookah bars” and “vape lounges.” They have become so popular that Governor Greg Abbott recently signed into law a bill that raises the age for the sale of tobacco products to 21 from 18. But does an ordinance that prohibits or regulates tobacco shops include or exclude hookah bars and vape lounges? The answer is a very definite “maybe.”

The common understanding and definition of a “hookah lounge” is a place where people can communally smoke shisha, which is tobacco, flavored with some combination of molasses, honey, fruit pulp or dried fruits. Is it possible to smoke a hookah that has no tobacco in it? Yes, there are tobacco-free hookah products in existence and for sale. Is it plausible that a hookah lounge would not contain any products that contain tobacco? No, according to the common definitions. Customers entering a hookah lounge would expect that tobacco products would be available.

However, let us say that a shop owner truthfully claims that his shop does not serve any tobacco products, just “fruit-flavored herbs” or something similar. Even taking the owner’s statement, that no tobacco would be smoked, as true, would the hookah lounge still violate the city’s smoking ordinance? It may be fair to interpret the ordinance either way.

A typical ordinance might define smoking as “inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe or other lighted tobacco product in any manner or in any form.” It is fair to conclude that the smoking definition necessarily includes tobacco because cigars and cigarettes contain tobacco and the catchall phrase “other lighted tobacco product” suggests that the definition includes only tobacco products. However, a more strict reading of the ordinance could lead to the interpretation that the smoking of any pipe, not just a tobacco pipe, and including a tobacco-free hookah, falls under the definition of “smoking.” The ordinance itself does not expressly specify that the pipe being smoked must be a tobacco pipe.

If the city wishes to prohibit the hookah lounge within city limits, it can make two different arguments in support of the prohibition: (1) hookah lounges necessarily include tobacco products, and (2) the smoking of any pipe, not just a tobacco pipe, is prohibited. Those two arguments are certainly subject to challenge, so if the city wishes to have an ironclad prohibition of hookah lounges, then an amendment to the ordinance would be advised, specifically including pipes that smoke shisha or other flavored herbs.

Vaping is usually done via an e-cigarette that supposedly delivers flavored vapor (and nicotine) without tobacco. The e-cigarette is more like a hookah water pipe than an actual cigarette, so the city could argue that the vaping “pipe” is covered by the definition of smoking. Still, amending the statute to specifically include hookah (shisha, whether or not containing tobacco) and vaping (flavored vapor, whether or not tobacco-based) would be a good idea. Consult with an experienced municipal attorney to review your current ordinance and decide how best to regulate tobacco products in your city.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.

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