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The state seeks to close a loophole that has caused headaches for some cities.
(Published Oct 3, 2012)
The Minnesota Department of Health (MDH) recently clarified that dedicated smoking lounges run afoul of the state Freedom to Breathe Act, which passed in 2007.
The Freedom to Breathe Act prohibits smoking in public places, places of employment, public transportation, and public meetings. One of the few exceptions to the broad prohibition is the so-called “sampling exception,” which allows “the lighting of tobacco in a tobacco products shop by a customer or potential customer for the specific purpose of sampling tobacco products” (see Minnesota Statutes, section 144.4167, subdivision 4).
Because the sampling exception only applies to tobacco products shops, the MDH, which is charged with enforcing this law, has stated that the exception does not allow dedicated smoking lounges, sometimes referred to as hookah lounges.
MDH has received multiple complaints regarding the operation of smoking lounges, and a number of cities have struggled with how to deal with lounges that claim to meet the sampling exception of the act.
In June, the Department of Health sent letters to eight businesses that operated indoor smoking lounges. MDH made clear that the sampling exception only applies to retail tobacco stores, and allows customers to sample tobacco to determine if they would like to purchase a larger quantity to smoke elsewhere.
To qualify as a tobacco products store, 90 percent of the business revenue must be derived from the sale of tobacco or tobacco products. Only three of the eight targeted businesses have provided additional information requested by MDH, and the department is currently determining its next steps.
Local ordinances may be more stringent
Cities have a powerful tool to deal with the issue of smoking lounges on their own. State law specifically states that a municipality may adopt an ordinance that is more stringent than the act, giving cities the power to ban all indoor smoking, including sampling.
The League has a model tobacco licensing ordinance available for use by cities. The model ordinance prohibits all smoking, including sampling. Cities can modify the ordinance to fit their particular needs. Because provisions of the ordinance are controlled by statute, the city attorney should review any modifications to ensure that they conform with state law.
The League will continue to monitor MDH’s enforcement actions. Cities with questions about their ordinances can contact League staff.