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Baltimore County hookah curfew is constitutional, Maryland's second-highest court rules

The blue caterpillar in “Alice in Wonderland” smoked his pipe by day, wrote Judge Robert Zarnoch in a Nov. 28 opinion. So, too, must Baltimore County hookah lounge-goers, after the Maryland Court of Special Appeals declared a county-imposed midnight curfew constitutional.

“Baltimore County’s requirement that hookah lounges close at midnight is a valid exercise of the County’s police power, and neither violates due process nor equal protection,” Zarnoch wrote in the opinion.

The ruling upholds a 2014 Baltimore County Council bill mandating that hookah lounges be closed between midnight and 6 a.m. Towson Nights Hookah Lounge in downtown Towson appealed the mandate, claiming it was unconstitutional.

Both the county Board of Appeals and the Circuit Court had dismissed Towson Nights’ claim.

Attorney Peter Prevas, who represents Towson Nights and its owner Abdul Nasser Taha, said the curfew has severely impacted Towson Nights because 90 percent of its business was generated between 11 p.m. and 2 a.m.

“By eliminating those hours, they effectively put the business out of business,” Prevas said. Four years after the ordinance went into effect, Towson Nights is still open, but Prevas said it is “struggling.”

In its appeal, Towson Nights argued that the time restrictions were “irrational, arbitrary, and unreasonable,” violating its due process, according to court filings. The business also claimed the law violated the equal protection clause under the 14th Amendment because it did not apply the same time restrictions to other late-night establishments, like bars.

But Zarnoch and the other two judges on the Court of Special Appeals panel disagreed, saying the county had both the authority to set the curfew and good reason to do so.

“Requiring hookah lounges in the County to close at midnight was rationally related to public safety concerns, as well as to public health concerns about exposure to tobacco smoke,” the opinion said.

The county’s rationale for the law, which was introduced jointly by all members of the council in 2014 at the request of the late County Executive Kevin Kamenetz, was primarily to curb crime and disturbances officials said were clustering around hookah lounges after hours.

In the six months prior to the bill’s adoption, police received 39 calls for service and made 37 arrests at hookah lounges around the county, all after 9 p.m., the opinion wrote.

Zarnoch went on to note a “grim irony” — the day the bill took effect, three people were stabbed in two separate incidents outside Towson Nights after midnight.

“The County’s regulation is plainly a rational attempt at protecting the public’s safety and welfare,” Zarnoch wrote.

The county was also justified in limiting hookah lounges’ hours because of public health concerns, Zarnoch wrote, citing studies linking hookah use to health problems including bronchitis, cancer and heart disease.

“During a one-hour smoking session a typical hookah user will inhale a volume of smoke equivalent to 100 or more cigarettes,” the opinion noted. Therefore, distinguishing hookah lounges from other businesses, such as cigar shops, was not arbitrary, it said.

Prevas said Towson Nights plans to take the next step in the appeals process and ask the state’s highest court, the Court of Appeals, to hear the case.

asolomon@baltsun.com

twitter.com/libsolomon

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