Smoked out: Hookah lounges complain of harassment by Burnaby bylaw department

This is the first of two parts on local hookah lounges’ struggle with the city. The second part will come out tomorrow.

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].”

Photo: Dustin Godfrey / Burnaby Beacon

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.”

Get Burnaby Beacon in your inbox.

An in-depth understanding of the stories that affect Burnaby and beyond, every weekday.