No. Businesses in California that serve food or beverages must be smokefree.
In California, some businesses that serve alcohol or food and sell tobacco (such as cigars, pipe/hookah tobacco, or electronic smoking devices) allow patrons to smoke inside, claiming that smoking is permitted because the establishment is a retail tobacco shop or a private smokers’ lounge. While Labor Code 6404.5 (California’s smokefree workplace law) does allow smoking in retail tobacco shops and private smokers’ lounges, this exemption does not apply to businesses that also serve food or beverages. Note that while California legislation removed several exemptions from the smokefree workplace law as of June 9, 2016, the exemptions discussed below remain.
The state smokefree workplace law restricts smoking in most enclosed workplaces. But there are two exemptions that relate to smoking inside certain establishments, such as hookah lounges, cigar bars, and stores that primarily sell electronic smoking devices. The first exemption allows smoking inside a retail or wholesale tobacco shop, which is defined as a business for which the “main purpose” is the sale of tobacco products. The second exemption allows smoking inside a private smokers’ lounge, which is defined as an enclosed area in or attached to a retail or wholesale tobacco shop that is “dedicated” to the use of tobacco products. (See California Labor Code section 6404.5.)
Because the law does not define the terms “main purpose” or “dedicated,” some law enforcement officials have struggled to interpret this language. If a hookah lounge, cigar shop, or other tobacco retailer sells other products, such as alcoholic beverages or food, is its main purpose still the sale of tobacco products?
The California Attorney General issued an opinion in 2011 concluding that an establishment does not qualify for the “retail or wholesale tobacco shop” or “private smokers’ lounge” exemption if it serves alcohol to patrons.
In 2008, the Legislative Counsel of California issued a similar opinion concluding that private smokers’ lounges attached to tobacco shops are not exempt from the smokefree workplace law if they serve alcoholic beverages to patrons. (See Legis. Counsel of Cal. Opinion #0824950, at 3 (September 15, 2008).)
Cities and counties in California have the authority to adopt local laws to completely eliminate the exemptions for retail tobacco shops and smokers’ lounges or to clarify the defined terms. Eliminating the exemptions for these businesses would require these places to be smokefree.
For more general information about the state smokefree workplace law, see our booklet, Tobacco Laws Affecting California, entry #1. Local law enforcement and public health agencies are authorized to enforce the smokefree workplace law. If you believe people are smoking illegally in a place covered by the law, your local public health department may be able to help you.
Photo credit: Scott Moore