Part One: Hookah lounges complain of harassment by Burnaby bylaw department
As the City of Burnaby was contemplating banning hookah cafes in 2020, owners say they were harassed by bylaw staff, who repeatedly visited their businesses.
And data obtained by Burnaby Beacon appears to lend credence to their claims.
City council first heard a report on a bylaw that would ban all forms of smoking inside businesses in September 2020.
The proposed bylaw at the time was intended to go beyond BC’s regulations, which only specifically banned tobacco and cannabis smoke, and vaporizers in businesses.
While hookah often contains tobacco, local businesses use alternative herbal products.
But in the months prior to the bylaw making its way to city council, some hookah lounges were feeling harassed by bylaw officers, according to a lawsuit filed in late February 2021.
“We struggled during the pandemic, and then on top of everything, the city, they tried to shut us [down]. And on top of everything, the city … did harass us, terrorizing us, and ruined my reputation,” said Mike Munther, owner of the Living Room Cafe, in a January interview with the Beacon.
In a separate interview, he added: “The city, they think they never did anything wrong. And someone has to stop them.”
Just under a month prior to the lawsuit being filed, the city had given final approval to the bylaw. The bylaw had been amended at the time to give hookah lounges until Jan. 1, 2022 to convert their businesses for other uses or to close.
But those businesses ultimately never closed down.
The hookah lounges’ lawsuit
In the lawsuit, Munther’s business and Narah Shisha Cafe Inc., which does business as Kayan Hookah and Shisha Cafe, sought a court order to quash the city’s smoking bylaws, which would have forced the closure of nearly a dozen shops in Burnaby.
“At no time did the petitioners hide the nature of their businesses. Multiple inspections were done by all levels of applicable government, and they were given the requisite approvals to open their business,” reads the lawsuit, filed by Dean Davison of Davison Law Group.
Part of the argument for barring hookah lounges was the matter of public health—namely the effects of second-hand smoke.
But hookah lounge operators pushed back on that argument, saying all employees and customers were willingly attending a place where hookah was being consumed.
In the case of Living Room, the business claimed in its lawsuit to have invested $200,000 into improving ventilation in the lounge, part of an overall $2-million investment into the business.
The lawsuit also noted that Kayan owner Oula Hamadeh had taken out loans from the BC government to help the business survive the pandemic.
“We will not recover from this,” Pascal Berro, with the Living Room lounge, said in an Oct. 5, 2020 council meeting about what will happen if a bylaw banning hookah lounges is passed, also noting the lounge has a 10-year lease that would have to be broken.
Hamadeh further explained the personal impacts of the possibility of shutting down in a council meeting three weeks later, on Oct. 26.
“When we decided to buy a home, which was [in] Burnaby, all our savings went to buying our home. And because we are self-employed, we do not qualify for [employment insurance],” she said.
“We will … lose our home, as we will not be able to afford our mortgage anymore, and my daughters will need to drop out of university.”
The harassment claims
In interviews with the Beacon, in the lawsuit, and in presentations to city council at the time, Munther expressed feeling continuously harassed by the city.
“Why are police being so aggressive?” Davison asked council in a Jan. 25, 2021 presentation to council. “The police and bylaw [officers] show up sometimes multiple times in a day.”
In an interview with the Beacon a year later, Munther was a bit more explicit.
“When you put any camera outside, [it] just protects yourself from thieves, right?” he said. “I put over 12 cameras just outside just to protect myself from the government.”
Munther said it started in July 2020 and stopped several months later.
He said he’s particularly frustrated that public resources went towards the issue.
“We are taxpayers, and … we pay them overtime. ‘We pay them,’ being me, you, and everyone,” he said, noting that bylaw officers were not coming during regular working hours.
“We paid them to harass us.”
What the data says
Burnaby Beacon obtained data from the city through a freedom of information request that shows hookah lounges, in general, were vastly overrepresented in COVID compliance checks—which looked for issues around capacity, masking, or physical distancing requirements—in summer 2020.
Included in that data was a spreadsheet marking down each visit paid to businesses in Burnaby for COVID regulation compliance checks between Aug. 22—when the city launched its COVID compliance program—and the end of September of that year.
In all, the Beacon found records of 574 visits to hundreds of businesses in the city. Of those visits, 241 (42%) occurred at 13 businesses—and that includes the 11 hookah lounges that operate in the city.
Solo Karaoke and Saray Turkish Cuisine were the only businesses that were not hookah lounges to receive five or more COVID compliance checks during that time. The two businesses were visited five and seven times respectively.
Hookah lounges, meanwhile, were on average subjected to COVID compliance checks 21 times in that period.
By comparison, 216 businesses were only visited once, while 42 businesses were visited twice, seven were visited three times, and three were visited four times.
The COVID compliance visits aren’t the end of the story when it comes to bylaw and police attending hookah lounges.
Munther claimed there were far more visits from bylaw and police officers than were recorded in the Beacon’s tally.
“I have video of every visit. They used to come three to four times a day,” Munther said.
He offered to share his archive of video footage but only if Burnaby Beacon shared its documents with him before publication, a condition the Beacon could not agree to.
A subsequent FOI request, however, does reveal more visits from city bylaw staff, for a total of 39 between June and October 2020.
A month-by-month breakdown of all bylaw visits shows no visits in June, prior to three shootings in the areas around three hookah lounges, followed by three bylaw visits in July. In August, there were 11 bylaw visits, three of which were COVID compliance checks.
September, after the second and third shootings, saw the most activity, with 24 bylaw visits, all COVID compliance checks, followed by just one COVID compliance visit in October.
Burnaby Beacon reached out to several other hookah lounges that were frequented by bylaw staff for COVID checks but received no response.
An emotional toll
Munther noted that bylaw visits often don’t just involve bylaw staff—police sometimes accompany the bylaw officers on their visits.
Burnaby RCMP told the Beacon in an emailed statement that officers accompanied city bylaw staff to hookah lounges on 20 different days in summer 2020, including eight days in August and nine days in September. All of those visits were for inspections for COVID-related regulations, police said.
Frequently seeing police at his lounge caused some patrons to wonder about his business, claimed Munther.
“I live with stress, struggle, money [concerns], … the pandemic, and on top, I have to fight them, and I don’t know what to do,” he said.
“Establishments such as hookah or karaoke lounges that offer music and late-night service tended to attract larger groups of patrons [due to bars being closed].”
Usually, he said, it’s governments that are supposed to correct misbehaviour by residents, but “we’re the opposite.”
“They’re doing everything wrong, and now I have to correct it,” Munther said. “They don’t listen.”
And he noted visits to his business often came late at night—bylaw officers’ reports on their visits to Living Room, obtained by Burnaby Beacon, mostly indicate arrival times around midnight or later.
Out of 25 bylaw COVID enforcement reports obtained by the Beacon, 15 indicated the officers either arrived or left Living Room after midnight.
Follow-up visits
City of Burnaby spokesperson Chris Bryan said in an email that bylaw staff would conduct “a number of follow-up visits to ensure continued compliance with ongoing [COVID] restrictions” when they were alerted to potential violations.
“The nature of the restrictions also led to some types of businesses seeing more frequent visits from bylaw staff than others. Restaurants, gyms and lounges (such as hookah or karaoke) were subject to enhanced restrictions, compared to other retail businesses,” Bryan said.
“As a result, these types of businesses saw more visits from bylaws staff.”
However, it’s worth noting that only one lounge—Living Room Cafe—is recorded to have been the subject of complaints.
And there doesn’t appear to be a correlation between compliance and the number of visits.
For instance, in five visits to Solo Karaoke, four found non-compliance. Meanwhile, The Glass Hookah was visited 23 times, with just two instances of non-compliance.
And of the 216 businesses that had only one visit within the time period, only 69 (32%) were found to be compliant.
Out of the 574 visits in total, 55% were found to be compliant, compared to nearly 86% of visits to hookah lounges.
And while hookah lounges made up 41% of all COVID checks in that time, they accounted for just 11% of non-compliant determinations.
“It’s also worth noting that during this time period, nightclubs were closed as a result of the provincial health restrictions,” Bryan said.
“Establishments such as hookah or karaoke lounges that offer music and late-night service tended to attract larger groups of patrons, which resulted in a higher number of inspections from bylaws staff compared to businesses that closed earlier.”
Part Two: Did shootings play a role in Burnaby’s proposed hookah ban?
In summer 2020, a trio of shootings was reported in the vicinity of hookah lounges.
One on Canada Day, outside Bloo Bby Restaurant, was followed by a pair of shootings near two separate hookah lounges in the early morning of Aug. 17.
One shooting, at 12:30am, was at North Road and Lyndhurst Avenue where a 21-year-old man had been shot several times. Witnesses reportedly told police the man had collapsed in front of the PMC Hookah Lounge.
Two hours later, shots were fired near the Living Room Cafe, at the corner of Canada Way and Smith Avenue.
And a lawsuit filed by two hookah lounges, Living Room Cafe and Kayan Hookah and Shisha, blames these shootings for experiences they had with the City of Burnaby.
Burnaby Beacon previously reported that hookah lounges were vastly overrepresented in bylaw COVID compliance checks in the months that followed the shootings—and a proposal to ban hookah lounges in the city also shortly followed the shootings.
Police told Burnaby Now at the time that they were looking into whether the two shootings were related, noting “increasing violence and shootings outside these types of businesses in Burnaby.”
(Burnaby Beacon searched Google News for articles that contained “hookah,” “Burnaby,” and “shooting” and did not surface any further examples.)
In an emailed statement to the Beacon this month, Burnaby RCMP said the shootings, which are still under investigation, are believed to have been linked to the Lower Mainland gang conflict, but “police have not been able to determine whether the locations played any part in the shootings.”
But in the ensuing weeks, hookah lounges were painted in broad strokes, both in opinion articles and in petitions started by local residents.
Both called for either a blanket ban on hookah lounges or for the city to consider what “seems like more than a coincidence” around hookah lounges “before it approves any more of these businesses.”
No problems before
For over a decade prior to the shootings, the lawsuit noted, hookah lounges had operated in Burnaby “without incident.”
The city report recommending a ban on hookah lounges included no mention of what had changed after a decade of allowing the lounges to operate, the lawsuit argued.
But everything seemed to change after the shootings.
“There was not one report of health issues [mentioned in the report]. No complaints of health concerns. No new science or reports pointing to the herbal hookah cafes being a concern,” the lawsuit reads.
“Out of the blue, right after a shooting associated with hookah cafes in Burnaby, the administrative arm of the city suggests that hookah cafes in Burnaby should be closed because there are health concerns related to herbal hookah.”
While the city staff report doesn’t indicate any new research or show any new concerns about the health concerns around hookah smoke, it does list a number of health-related concerns. For one, it referenced an American Lung Association report that stated that, while people perceived hookah smoke to be less harmful than cigarettes, the smoke has been found to contain some of the same toxic chemicals.
And it referenced a US Centers for Disease Control and Prevention report that stated the charcoal used to heat the hookah can also produce hazardous levels of carbon monoxide and carcinogens.
Still, the hookah lounges’ lawsuit ties the timing of the hookah lounge bylaw to the shooting.
“There was no connection reported or disclosed between the incidents and the hookah cafes, yet the word ‘hookah’ appeared in the newspaper and social media headlines. This was the beginning of a focused and concerted effort to discriminate against hookah cafes and their patrons in Burnaby,” reads the lawsuit.
“There was an incorrect assumption that somehow hookah cafes were connected to criminals or crime because they were frequented by younger visible minorities.”
In an interview, Mike Munther, owner of Living Room Cafe, expressed similar frustration with the public dialogue around hookah lounges following the shootings. He noted most other businesses would not face calls for blanket bans after incidents that happened outside of their property.
He said the shootings were just a fraction of the gun violence that had taken place in the province. According to provincial government statistics, there were 102 reported attempted murders in 2020 and a further 98 reported criminal homicides. And those are just the tip of the iceberg in violent crimes, with another 40,000 assaults reported that year.
And few, if any, of those spurred calls for bans on a specific type of business, such as nightclubs.
“In a library in North Vancouver, they had a stabbing. [At a Delta] Walmart, they had a shooting,” Munther told the Beacon, also pointing to a shooting at a Cactus Club off Marine Way in Burnaby.
“It happens everywhere. It doesn’t mean if you have a shooting beside your house that you’re responsible. … This makes me very angry.”
The timing of the ban
And the lawsuit pointed out the specific timing of the city’s proposed hookah ban in summer 2020—just 10 days passed between the August shootings and the proposed ban.
“The report recommended that bylaws be passed … under the guise of health concerns. It did not say what had changed or why this was required after a decade of no health issues with hookah cafes in Burnaby. There was not one report of health issues,” the lounges argued in the lawsuit.
The lounges were, after the shootings, subjected to an increase in complaints to the city and RCMP, leading to bylaw and police officers “routinely” visiting the lounges, according to the lawsuit, which stated: “This is the real genesis of these hookah bylaws.”
“No tickets were issued and no warnings given, just a consistent and intimidating police and bylaw presence to try to appease an out-of-control public fever,” reads the lawsuit.
“Clearly the hookah bylaws were created to deal with the increased public scrutiny and call for the RCMP and the city to waste its resources on law-abiding businesses because of this prejudicial and unreasonable fear that these multicultural businesses were a breeding ground for criminals.”
However, in an interview, Munther said he did not believe there was a connection between the shootings and the bylaws. Munther and Pascal Berro, who also runs the Living Room Lounge, said the efforts to shut down the lounges appeared to begin before the shooting. However, data obtained by Burnaby Beacon indicates no bylaw visits in June, and escalating visits in the months that followed the shootings.
“[People] started to pursue this idea that hookah isn't healthy, so we should close all lounges. ... My argument was: McDonalds is not healthy, but they are still open.”
Still, the lawsuit called the complaints a “perfect storm of prejudice and NIMBYism” and said people “reacted illogically and passionately to try to get the hookah cafes closed.”
And Nathan Chand, owner of the Bula Lounge, which received the most COVID compliance checks of any business in August and September of 2020, told the Beacon in an email that he did see a connection between the shootings and the issues with the city.
After the shootings, he said, people “tried to blame all hookah lounges, saying all hookah lounges are not safe.”
“And [people] started to pursue this idea that hookah isn’t healthy, so we should close all lounges,” Chand said. “My argument was: McDonalds is not healthy, but they are still open.”
A history of smoking and bylaws
The timing of the appearance of a ban on hookah lounges is curious, though the issue of smoking and vaping wasn’t exactly new to the city.
The city’s first smoking bylaw, which came in 1997, was repealed in 2013, after city officials determined in a review of the bylaw that it was effectively rendered redundant by provincial legislation.
The issue of smoking did continue to resurface over the years since then—including not long before the hookah smoking bylaw was proposed.
In September 2019, the city’s parks, recreation and culture commission proposed a smoking ban in public spaces, including parks and patios. Until recently, the city was one of only two municipalities in Metro Vancouver—along with Bowen Island—to have no form of a smoking ban in parks.
Council decided to proceed with caution on that proposal. Councillors particularly noted concerns that the wording of the report appeared to target all public spaces—effectively banishing all smoking to private homes.
Then, 11 months later, a report made its way to the public safety committee outlining a potential ban on smoking of all substances in businesses.
That report, dated August 2020, acknowledged the process that was then ongoing regarding a smoking ban in parks and said that report would still be forthcoming.
But it remains unclear what spurred this report. Nevertheless, the proposed ban on hookah lounges was passed early the next year, much to the chagrin of hookah lounge operators.
The complaints
In notes taken by bylaw officers in July, obtained through a freedom of information request, operators of the Living Room Cafe are noted as saying they have a good relationship with their neighbours and that they try to ensure the people leaving their business late at night are not disruptive to the neighbourhood.
But there was a pair of complaints, both of which raised similar issues, in July and August, with one saying the Living Room Cafe had been “a big problem, and has been since day 1.”
“They are licensed as a cafe, which they are operating as a nightclub,” reads the July complaint to the city, which is heavily redacted.
“They have brought nothing but chaos into our lives.”
The person said they had concerns about COVID compliance, as well as noise in the neighbourhood, which they said can go on as late as 6am.
“We should not suffer because of the mistakes of others. Basically, we should not become collateral damage."
The complainant said they also had concerns about air quality from the hookah smoke.
“I call the police several times a week, every single week,” the person wrote.
The identity of the complainants and the location of their residences are redacted from the files, and in an early August correspondence, a representative of the Living Room Cafe questioned whether the complaints were not made in good faith.
“We have no issues with the neighbours. … We are concerned [about] who is making these complaints. If it is a[n] ex-employee who is upset with us or a competitor, we would like to know,” reads an email from Living Room Cafe to the city.
The lawsuit filed by the two hookah lounges also noted the complaints filed against them, noting that they specifically came up after the shootings.
And when bylaw officers followed up, they didn’t appear to corroborate the issues in the complaints. The business was found to close at 2am, social distancing was being practised, and liquor was not seen onsite at times during which it was not allowed.
Painted in broad strokes
The city ordered the closure of the Pure Hookah Lounge in recent years, and city council held up that decision in October 2019, citing 119 complaints against the business.
But it doesn’t appear the other hookah lounges were facing the same level of complaints.
Dean Davison, the lawyer representing Kayan and Living Room, sought to obtain records of complaints against the hookah lounges through a freedom of information request. But he said he was hit with a prohibitive fee in the thousands of dollars.
Oula Hamadeh, owner of Kayan, told council in 2020 that her hookah lounge had not been the subject of complaints, even if complaints were filed against other hookah lounges.
“We should not suffer because of the mistakes of others. Basically, we should not become collateral damage. Logically speaking, if a customer has had bad fish and people got food poisoning, the city would not pass a bylaw that would shut down all restaurants that sell fish,” Hamadeh said.
“They would only shut down that restaurant.”
And a blanket hookah ban would have been contrary to the city’s stated goals around multiculturalism, Davison noted.
Hamadeh told council in October 2020 that hookah lounges offer a community space for people who don’t drink, and Munther similarly noted its cultural significance for him.
Grandfathered in
On Jan. 25, 2021, the same day Davison presented to council on the smoking bylaw and the smoking enforcement regulation bylaw, council voted on final approval for them.
Coun. Colleen Jordan and Coun. Dan Johnston, a team of independents on council, sought to table the matter and direct staff to consider the materials presented by Davison.
The motion was flatly denied, with only Jordan and Johnston voting in favour of it, and Burnaby Citizens’ Association Coun. Sav Dhaliwal said staff had already given the issue plenty of consideration.
Council gave final consideration for the bylaws that night and adopted them.
But then they returned to council just a few months later.
In May 2021, staff recommended that a new bylaw be proposed to replace the two smoking bylaws and regulate the issue “by way of a comprehensive set of policies and regulations.”
“Similar and overlapping policy and regulatory issues were identified,” staff said of a review of the bylaws.
And when staff returned to council in late June 2021, the new bylaw, which was later approved by council, had carved out exceptions, including existing hookah lounges.
Lawsuit hearings adjourned
In responding to a series of questions from Burnaby Beacon, the city did not say whether the change was a result of the lawsuit.
Instead, spokesperson Chris Bryan said the city made the exemptions “in recognition of the significant investment these current operators have made to their current business premises.”
And Davison said he and the hookah lounge operators didn’t want to take credit for the change, though he praised the change of heart.
But earlier that spring, a judge issued an order on the lawsuit.
On March 24, 2021, the BC Supreme Court heard from legal counsel to the hookah lounges and city lawyers. No details are provided on the hearing, but the court ordered that the lawsuit be “adjourned generally to a date scheduled with the registry.”
The order was stamped with the BC Supreme Court seal on April 19 that year—and that was the last time the file has been touched, according to Court Services Online.
The only thing that remains, Davison told the Beacon, is to end the action permanently.
Bryan said all 11 hookah lounges will only be allowed to continue operating as hookah lounges if they stay in the same location and if they don’t sell or transfer the business to another party.
No new lounges will be exempt from the bylaw, he said.
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