Virginia Hookah Cafes Must Put Out the Coals

(CN) - Hookah bars that serve food in addition to their tobacco wares are subject to Virginia's indoor-smoking ban, the state Supreme Court ruled.

The Jan. 8 decision comes as a blow to Kepa Inc., which owns She-Sha Café and Hookah Lounge in Blacksburg, Va.

The cafe rents hookahs for use on-site or at home, and it sells food in the same area where customers smoke.

Because it also operates as a full-service restaurant, She-Sha does not qualify for the tobacco-retailer exemption to the Virginia Indoor Clean Air Act, the Virginia Supreme Court ruled.

Although the majority of She-Sha's revenue comes from tobacco sales, it is a dual business - both tobacco retail establishment and restaurant - and the act specifically prohibits smoking in any restaurant, the six-justice majority said.

The statute makes clear that the Legislature intended the law to protect both employees and the customers who chose to eat at a smoking establishment.

"Not all employees have the luxury of working in their preferred work environment, yet they must work, and the General Assembly has determined that they should be able to work in an environment that limits their exposure to second hand smoke if that concerns them," Justice William Mims wrote for the court.

Since the statute specifically defines a restaurant as "any place where food is served," which clearly includes She-Sha, a judicial exception is not appropriate, the majority found.

"Construing Code § 15.2-2821(2) broadly to include 'retail tobacco stores and restaurants' would frustrate the purpose of VICAA and roll back its protections for restaurant customers and employees throughout Virginia, and not just in a single hookah bar in Blacksburg," Mims wrote.

Justice Elizabeth McClanahan dissented.

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