Smoked out: Did shootings play a role in Burnaby’s proposed hookah ban?

This is the second of two parts on a hookah ban and claims by lounges that they were harassed by city bylaw staff. Read the first part, in which we found hookah lounges were vastly over-represented in the city’s COVID compliance checks, here.

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.”

Photo: Dustin Godfrey / Burnaby Beacon

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."

Photo: Wirestock Creators / Shutterstock

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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