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Utah senator says hookah ban might be wrong

Published August 30, 2011 4:09 pm

Legislature • Stephenson seeks legal opinion on definition of "lighted tobacco."
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A powerful Utah lawmaker wonders whether the state health department overstepped when it corked hookah pipes.

Sen. Howard Stephenson, R-Draper, has asked legislative attorneys to determine if the Utah Department of Health had the authority to reinterpret the Utah Indoor Clean Air Act.

"As chairman of the Administrative Rules Review Committee, I'm aware [that] sometimes state and local agencies try to enforce something that isn't provided for in statute," he said Tuesday. "If they don't have the authority then it raises the question, does the Legislature want to give the health department that authority?"

On Monday, the health department announced it had amended rules for the Utah Indoor Clean Air Act to include hookah, or water pipes. Starting Sept. 12, smoking hookah indoors will be illegal in public places, including bars and clubs.

The clean air act law that bans smoking defines "smoking" as possession of "lighted tobacco." The health department redefined "lighted tobacco" to mean tobacco under self-sustained combustion and "tobacco that is heated to a point of smoking." That treats smoke from cigarettes, cigars and pipe tobacco the same as smoke emitted from a hookah, in which the tobacco is heated via charcoal.

Health department spokesman Tom Hudachko said agencies "routinely" write rules to implement statutes, and the health department wanted to clear up confusion about the definition of "lighted tobacco."

"Prior to writing the rule we received advice from our deputy attorney general, and based on that advice we feel we are within our authority as a rule-making agency," Hudachko said via email.

Nathan Porter, owner of the Murray-based Huka Bar & Grill and Huka Lounge, said the rule will put him out of business. He plans to seek an injunction and to sue the health department.

Porter, who has met with Stephenson, has also questioned whether the health department can make the change administratively.

Stephenson said he visited a hookah lounge and he didn't smell smoke, though he noted only one pipe was lit at the time.

The health department said it changed the rule to protect patrons and employees from hookah secondhand smoke. The Centers for Disease Control and Prevention consider the emissions a "serious risk for nonsmokers."

Porter disputes that. Stephenson said he doesn't know if it's a health risk. For now, he wants to know which branch of government has the power to decide.




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