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Virginia Department of Health v. Kepa, Inc.

Supreme Court of Virginia

January 8, 2015

VIRGINIA DEPARTMENT OF HEALTH
v.
KEPA, INC., d/b/a SHE-SHA CAFÉ AND HOOKAH LOUNGE

FROM THE COURT OF APPEALS OF VIRGINIA.

Matthew L. Gooch, Assistant Attorney General (Mark R. Herring, Attorney General; John W. Daniel, II, Deputy Attorney General; Lynne C. Rhode, Senior Assistant Attorney General; Paul Kugelman, Jr., Senior Assistant Attorney General; Karri B. Atwood, Assistant Attorney General II, on briefs), for appellant.

Andrew P. Connors (James R. Creekmore; Keith Finch; Brennan Crowder; Creekmore Law Firm, on brief), for appellee.

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Russell, S.J.

OPINION

Page 885

[289 Va. 134] WILLIAM C. MIMS, JUSTICE.

In this appeal, we consider whether the Court of Appeals erred in construing the

Page 886

Virginia Indoor Clean Air Act to exempt a retailer of tobacco and tobacco products from regulation, despite the fact that it also serves food.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

A. Background

Kepa, Inc. has owned and operated She-Sha Café and Hookah Lounge (" She-Sha" ) in Blacksburg since 2003. She-Sha sells tobacco and tobacco products to its customers. Customers may purchase tobacco to smoke on-site through " hookahs," which are available for rent at the café, or to smoke off-site.[1] It also sells food for on-site consumption in the same area where tobacco is smoked.

She-Sha is licensed as a " Food Establishment," specifically a " Full Service Restaurant," by the Virginia Department of Health (" Department" ). It is also licensed as an " Other Tobacco Product Retailer" by the Virginia Department of Taxation. On its business license application to the Town of Blacksburg, She-Sha lists the nature of its business as " Restaurant and Retail Tobacco Store."

On January 22, 2010, the Montgomery County Health Department received a complaint indicating that She-Sha was allowing customers to smoke in its restaurant in violation of the Virginia [289 Va. 135] Indoor Clean Air Act, Code § 15.2-2820 et seq. (" VICAA" ), which went into effect on December 1, 2009. VICAA makes smoking in restaurants generally unlawful, subject to six narrow exceptions. Code § 15.2-2825(A)(1) through (A)(6). On January 27, 2010, the Department conducted an investigation and subsequently charged She-Sha with two violations.[2]

B. Relevant Statutory Provisions and Material Proceedings Below

At issue in this appeal is the proper interpretation of two statutory provisions from VICAA that appear to conflict when applied to She-Sha. First, Code § 15.2-2821, which states VICAA's general applicability, provides:

Nothing in this chapter shall be construed to:
1. Permit smoking where it is otherwise prohibited or restricted by other applicable provisions of law; or
2. Regulate smoking in retail tobacco stores, tobacco warehouses, or tobacco manufacturing facilities.

Next, Code § 15.2-2825, which prohibits smoking in restaurants, provides in relevant part:

A. Effective December 1, 2009, smoking shall be prohibited and no person shall smoke in any restaurant in the Commonwealth or in any restroom within such restaurant, except that smoking may be permitted in:
. . . .
3. Any restaurants located on the premises of any manufacturer of tobacco products;
. . . .
5. Any portion of a restaurant that is constructed in such a manner that the area where smoking may be permitted is (i) structurally separated from the portion [289 Va. 136] of the restaurant in which smoking is prohibited and to which ingress and egress is through a door and (ii) separately vented to prevent the recirculation of air from such area to the area of the restaurant where smoking is prohibited.

It is also relevant to note that, for the purposes of VICAA, a " Restaurant" is " any place where food is prepared for service to the public on or ...


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