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She-Sha’s attorney said a date for the hearing over a restaurant smoking ban is yet to be set.
DANIEL LIN | Special to The Roanoke Times
Hookah rentals accounted for about two-thirds of She-Sha’s revenue in the three months preceding its citations from the state.
Tuesday, May 7, 2013
The Virginia Court of Appeals announced Tuesday that it will rehear the case involving Blacksburg’s She-Sha Cafe and Hookah Lounge and the Virginia Department of Health.
On April 9, the state Court of Appeals published an opinion that agreed with Montgomery County Circuit Court’s previous ruling that She-Sha is not exempt from the regulations of the clean air act. That opinion stated that because She-Sha serves food, it is subject to the restaurant smoking ban .
The April ruling was made by a panel of three judges, with two judges ruling in favor of the Department of Health and one judge ruling in She-Sha’s favor. Andrew Connors, the attorney representing She-Sha, said at the time that She-Sha could petition the Court of Appeals and ask that all sitting judges review the decision.
According to an order released by the Court of Appeals, another hearing has been granted.
Connors said today that a hearing date has not yet been set.
A hookah, a tall water pipe used to smoke flavored tobacco, is usually used socially. The new clean air act, enacted Dec. 1, 2009, prohibits smoking in restaurants in the commonwealth.
The state Department of Health first received a complaint Jan. 22, 2010, saying that She-Sha was allowing patrons to smoke in its establishment. The health department later determined that the smoking ban applies to hookah use and that She-Sha was subject to the regulations of the clean air act, according to the April opinion.
She-Sha petitioned Montgomery County Circuit Court in August 2011 for an appeal of the health department’s decision. The county circuit court upheld the decision, leading She-Sha to take the case to the Court of Appeals.
Hookah rentals accounted for 66 percent to 67 percent of She-Sha’s revenue in the three months preceding the citations from the Department of Health, and those sales figures have been consistent since September 2008, according to the dissent written by Judge William Petty . The business has a license from the Virginia Department of Taxation classifying it as an “Other Tobacco Products Retailer,” and as of February 2010, She-Sha had paid more than $7,200 in taxes, as required for retail tobacco sales, the dissent states.
However, food and alcohol are also sold at She-Sha, which opened in March 2004, and because of this, two of the three judges stated that She-Sha is classified as a restaurant, meaning it must abide by the clean air act.
Petty disagreed, writing that the first step should be determining whether She-Sha is primarily a retailer of tobacco products instead of a restaurant.
The act states that “[n]othing in this chapter shall be construed to [r]egulate smoking in retail tobacco stores, tobacco warehouses, or tobacco manufacturing facilities,” according to Petty’s dissent.
“In other words, if She-Sha is a retail tobacco store, we do not need to concern ourselves with any of the provisions of the Indoor Clean Air Act, including its definition of a restaurant, because they simply do not apply,” Petty wrote.