Wednesday, November 28, 2018

After Midnight: No Playing Hookah

An issue I had not considered has been addressed by the Maryland Court of Special Appeals

In Alice in Wonderland, the blue caterpillar appeared content to smoke a hookah by day. Here, we primarily consider whether legislation requiring hookah lounges to close at midnight violates due process and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Finding no Constitutional or other legal infirmity, we uphold the restriction as a valid exercise of Baltimore County’s police power.

The court concluded that equal protection was not violated because similar small business are permitted to remain open after midnight.

legitimate concerns for the public safety and welfare undergird the County’s requirement that hookah lounges close at midnight. Over a six-month period prior to the bill’s enactment, Baltimore County police made 37 late-night arrests related to hookah lounges, and police received calls linking hookah lounges to underage drinking, assault, CDS violations, and handgun violations. To repeat a few of the public health concerns—significant concentrations of particulate matter and carbon monoxide have been measured at hookah lounges, and during a one-hour smoking session a typical hookah user will inhale a volume of smoke equivalent to 100 or more cigarettes. Hookah lounges seem to have particular appeal to college students, and as of 2016 at least half of the hookah lounges in the State were within two miles of a college campus. As such, the fact that the County did not require other businesses that offer late-night diversions to close at midnight does not create an arbitrary distinction that rises to the level of an equal protection violation—especially considering that there has been no contention by Appellants that the County drew upon suspect distinctions or trammeled upon any fundamental rights in differentiating between late-night establishments. Despite Appellants’ characterization of hookah lounges as basically equivalent to other sites of late-night diversion (especially cigar bars), we determine that the County’s distinction is reasonable. 

(Mike Frisch)

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