There is much debate about the hookah business lately in Rapid City.  Before I get started let me state this for the record:  Owning and operating a hookah business in South Dakota is legal.  Entering the business and smoking hookah is legal as long as you are at least 18 years old.

One such business in particular drew attention to themselves by marketing their products and services using social media, and in doing so, showed the world their current business model.  Among other things, there were numerous photos of young people smoking hookah pipes and drinking alcohol, so naturally the question came up – why is this business allowed to sell tobacco, allow smoking and also allow alcohol to be consumed when other businesses have been prohibited from doing so since 2010?   South Dakota passed a ‘no smoking in public places’ law then, which immediately put a stop to smoking in bars, restaurants and other businesses.  We debated the issue and in doing so, uncovered  letters to and from State’s Attorney Glenn Brenner and the hookah business’ corporate attorney, discussing the matter in 2010, prior to the law going into effect.  At that time, based on the circumstances at hand, Mr. Brenner decided not to litigate the matter based on the lack of complaints, the lack of public input/outcry, and the newness of the legal exceptions especially for cigar bars…and so the business was allowed to do both, and did so, largely under the radar.  That all changed around the end of 2011 with the new marketing campaign.  So, the question was raised once again.

The smoking ban law passed in 2010 states:

34-46-14.   Smoking in public or place of employment prohibited–Petty offense. No person may smoke tobacco or carry any lighted tobacco product in any public place or place of employment. A violation of this section is a petty offense.

Pretty cut and dried (tobacco pun).  There are two exceptions to the rule though.  The first and most relevant exception states:

34-46-19.   Smoking permitted in certain retail tobacco stores. The provisions of 34-46-13 to 34-46-15, inclusive, do not apply to any retail tobacco store that meets the following requirements:

(1)  Generates sixty-five percent of its annual gross income from the sale of tobacco, tobacco products, and accessories for such products;

(2)  Is enclosed by solid walls or windows, a ceiling, and a solid door that provides egress to the outdoors; and            

(3)  Does not allow the consumption of alcoholic beverages on the premises.

So that’s it -  The State’s Attorney has formed the opinion (and I agree with him) that the business that serves alcoholic beverages and sells hookah is in violation of the law and that’s where we come in.  It’s not a moral decision, it’s a legal decision.

Here’s the second exception, which is for cigar bars:

34-46-18.   Smoking permitted in certain licensed establishments where alcohol sold. The provisions of §§ 34-46-13 to 34-46-15, inclusive, do not apply to any establishment licensed pursuant to subdivision 35-4-2(4), (6), (12), or (16) that was in compliance on January 1, 2009, with, and maintains compliance with, the following requirements:

(1)  Generates ten percent or more of its annual gross income from the sale of cigars. For the purposes of this section, a cigar is any individual roll of tobacco that has a wrapper or cover consisting only of tobacco, that measures a number forty ring size or larger, and that is sold without a filter;

(2)  Has a humidor on the premises; and

(3)  Is enclosed by solid walls or windows, a ceiling, and a solid door and is equipped with a ventilation system by which exhausted air is not recirculated to nonsmoking areas and smoke is not backstreamed into nonsmoking areas.

Any establishment meeting the requirements of this section may permit the smoking of cigars and any premium tobacco product purchased on the premises. However, no establishment may permit the smoking of any other tobacco product on the premises. The establishment shall post a notice of the prohibition.

This exception is more complicated, AND it allows the sale of alcohol.  Why?  I don’t know, but it’s not important to this discussion.  Back to hookah:

Let’s look at the product – hookah.  It’s tobacco (same product used in … smoking).  It is ingested by burning the tobacco at about 450 degrees with a coal-like material, in a water-pipe or hookah pipe (similar concept to a water bong, used for ingesting marijuana).  The user sucks on the hose which pulls the by-products of the hookah downward, through water stored in the pipe and up the tube into the lungs.  Hmmmm…sounds like smoking, only it also pulls the by-products of the coal into the lungs as well.  These by products have names like: tar, nicotine, carbon monoxide and various hydrocarbons.  Sound like smoking?  Wait – it gets better:

Several studies have been done on the comparison between hookah and cigarettes.  One such study indicates hookah delivers 100 times the tar, four times the nicotine and 11  times the carbon monoxide.  The more we look, the more we find, studies by MDs, PhDs and universities.  The Center for Disease Control is also a valuable resource as is the World Health Organization.  These studies have a common denominator: hookah produces smoke which is deadlier than cigarette smoke, not only to the user, but also to the passive users, the second-hand users.

The hookah business’ legal counsel insists that hookah smoking does not produce smoke, but rather produces a water vapor…kind of like a humidifier I guess.  My question is this:  If it’s water vapor, how is tar, nicotine and carbon monoxide produced at elevated levels?

The law is clear on this and enforcement will have to take place.  The easy way out is to choose between alcohol and hookah because serving the two together is illegal and it must be stopped.