Posted by: Patricia Salkin | November 28, 2018

MD Court of Special Appeals Finds Hookah Lounge Restriction a Valid Exercise of Baltimore County’s Police Power

This post was authored by Matthew Loeser, Esq.

In 2014, the Baltimore County Council passed a bill that required hookah lounges in the County to close between midnight and 6:00 a.m. every day. This bill amended the Baltimore County Zoning Regulations (“BCZR”) to include a definition of “Hookah Lounge” that restricted hookah lounges’ hours of operation. Towson Nights hookah lounge alleged that, absent the County ordinance, approximately 90% of its business would take place between 11:00 p.m. and 2:00 a.m. As such, Appellants contended that the restriction on business hours was equivalent to a cessation of the business’s lawful use, which should have entitled Towson Nights to an “amortization” period longer than the 45 days given to comply with the act.

On appeal, Appellants first alleged that the County’s placement of time restrictions in a zoning ordinance was ultra vires. As a charter county, Baltimore County received a grant of express powers from the General Assembly, which specify that Baltimore County may “pass any ordinance, resolution, or bylaw not inconsistent with State law that … may aid in maintaining the peace, good government, health, and welfare of the county.” Thus, Baltimore County had the express power to pass ordinances to protect the public’s health and safety. Here, the court found that the County’s restriction on hookah lounges’ hours of operation fell squarely within this ambit. Accordingly, Baltimore County did not act ultra vires by enacting time restrictions in a zoning regulation.

Appellants next argued that requiring hookah lounges to close at midnight was an irrational and arbitrary violation of substantive due process as guaranteed by the Fourteenth Amendment. The record indicated that in an executive summary of the bill prepared for Councilmembers by the County’s Legislative Counsel, the County stated that in a six-month-period prior to the bill’s adoption, there were 37 arrests and 39 calls for service at various hookah lounges throughout the County, all of which occurred after 9:00 p.m. Moreover, two separate stabbing incidents occurred outside Appellants’ own hookah lounge after midnight on the very day that the bill went into effect. Additionally, the County’s executive summary of the ordinance observed that “a typical one-hour-long hookah smoking session involves inhaling 100-200 times the volume of smoke inhaled from a single cigarette.” As such, the court found that the County had valid health and safety reasons to regulate hookah lounges on the basis of hookah use.

Finally, Appellants argued that requiring hookah lounges, but not similar businesses such as cigar bars, liquor licensed establishments, other “BYOB” establishments that were not hookah lounges, to close at midnight was an arbitrary distinction that violated the Equal Protection Clause of the Fourteenth Amendment. The court found that despite Appellants’ characterization of hookah lounges as basically equivalent to other businesses, such as cigar bars, the County’s distinction was reasonable. Furthermore, the court noted that the concern for the public safety did not require Baltimore County to “strike at all evils” by requiring all sites that offered late-night entertainment to close at midnight. Accordingly, the court held Baltimore County’s requirement that hookah lounges close at midnight was a valid exercise of the County’s police power, and did not violate due process nor equal protection.

Baddock v Baltimore County, 2018 WL 6187574 (MD 11/28/2018)

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