D.C.’s Restriction on Hookah Bars in Phase II Reopening

In Hospitality, Legislation by Richard Bianco

The Department of Health recently closed a Georgetown hookah bar, which has sparked questions from restaurant owners if offering hookah during Phase II reopening is legal? Clearly, DOH takes the position that it is not.

Of the roughly 100 citations issued by ABRA through September 19, 2020, none have identified hookah as a violation. The Department of Health has issued far fewer citations and the recent closing marks the only hookah violation since Phase II began. (As reported by the Washington Post)

The Mayor’s Order 2020-075 governing the Phase II reopening provides that “[h]ookah bars, cigar bars, and any other businesses operating pursuant to an exemption from the anti-smoking laws of the District of Columbia shall remain closed.” On the other hand, ABRA’s emergency rulemakings with respect to the reopening, do not mention hookah or smoking in any way. This makes sense, since, pre-pandemic, the Department of Health and not ABRA is charged with enforcement the District’s anti-smoking laws.

ABRA has robust enforcement machinery, and investigators have been a constant since the reopening. So many restaurants openly offering hookah, reasonably believe that it is permissible in Phase II. The text of Mayor’s Order does not necessarily clarify, as it merely requires that “hookah bars,” an undefined term, remain closed. The Order is silent on whether licensed restaurant’s exempt from the anti-smoking laws may offer hookah to diners.

It is important to understand that ABRA, if it chooses to, can issue citations/violations to restaurants for violating non-alcohol related laws. Typically, but not always, coordinate agencies of the District government stay in their lane and enforce laws within their regulatory purview. ABRA has done so on the smoking issue but, their position can change.

Per the Mayor’s Phase II order, hookah bars must remain closed. DOH’s most recent enforcement action suggests that this includes offering hookah to diners at establishments allowed to operate in Phase II. To date ABRA has not encroached on DOH’s regulatory turf, but, that is not to say that they won’t in future.

If you have questions about Phase II operations, or any other regulatory compliance issues for restaurants, we’d be glad to speak with you in greater detail. Contact us, visit our website for additional resources, or use our online scheduling tool to book an appointment to speak with one of our lawyers.