Give Ifrits Hookah Lounge in Rapid City points for legal creativity. As Police chief Steve Allender prepares to enforce the state's smoking ban on the establishment, the lounge's lawyer says its hookah smokers aren't really smoking:
Hookah smoking, which originated in India and the Middle East, involves using water pipes with burning charcoal to ingest tobacco. Ifrit's attorney, Stephen Wesolick, said he will take the matter to court for a judgment on whether it constitutes smoking under the state statute.
Wesolick said the position of Ifrit's is that the tobacco product in a hookah pipe is not ignited to produce smoke, but is heated and dehydrated to produce a vapor.
"It's not the same as smoking a cigarette or a pipe," he told The Associated Press on Tuesday. "It's our position that it's not a smoke that results from combustion" ["Smoking Ban to Be Enforced at SD Hookah Lounge," AP via Black Hills Pioneer, 2012.04.17].
Right. South Dakota's smoking statutes do not appear to define smoking, so the court will have to default to common usage. A quick perusal of hookah language finds the practice referred to almost universally as "smoking." Hookah smoking still poses the same hazards to users and secondhand ingestors (not to mention the added risk of spreading colds, flu, and oral herpes) that undergirded the legislative intent of South Dakota's smoking ban. A retail tobacco shop can host smokers, but it can't sell alcohol, and Ifrits sells alcohol.
Open and shut: if Ifrits wants to keep the hookahs, it'll have to ditch the hooch.