The city’s new hookah ban is under legal attack just days before bylaw officers are scheduled to start writing tickets for lawbreakers.
The application issued late Friday afternoon claims that adding “pipes” to the city’s smoke-free bylaw is unconstitutional and asks for an injunction to stop the city from enforcing the bylaw.
Brian Mahmoud, who operates Lebanese Palace at 919 Industrial Ave., and a shisha-enjoying patron, Fadi Itaif, have hired lawyer Lawrence Greenspon to fight the bylaw.
It’s not clear how the application will affect the city’s enforcement program.
Stuart Huxley, a senior lawyer with the city, sent an emailed statement through the communications department.
“The city clerk and solicitor’s office has recently been contacted by a local law firm advising that a court proceeding may be forthcoming in relation to the Water Pipes in Public Places and Workplaces Bylaw, which came into force on Dec. 1, 2016,” Huxley said in the email. “In the event that the city is served with court documents, the city will review and respond accordingly to the court process. As a result, the city has no further comment at this time.”
According to the application, Lebanese Palace provides “a space for Middle Eastern individuals and groups to gather and enjoy ethnic food, conversation and to smoke water pipes.”
The smoking of water pipes “is intimately connected to Middle Eastern and Arab culture and is deeply rooted in tradition,” the application says, and it goes on to suggest there would be no public space in the city for people to enjoy the ritual of water-pipe smoking.
The bylaw now contravenes the city’s multiculturalism policy, and more seriously, goes against the Charter of Rights and Freedoms because the bylaw amendments “discriminate against Arab-Canadians based on the non-enumerated ground of culture,” the application says.
Water pipe revenue allows Mahmoud and Lebanese Palace to “remain financially stable,” and without the incoming money, the restaurant couldn’t continue operating, the application says.
As part of their application to the court, they plan to file an affidavit of a university expert on Middle Eastern and Arabic culture.
Bylaw services were scheduled to begin writing tickets Monday for anyone using a water pipe inside public spaces and on restaurant patios.
Technically, the water pipe ban started last Dec. 1, but the city agreed to hold off on ticketing people until April 3, 2017. The months in between were meant to educate people about the new bylaw. The city has been only issuing warnings to offenders.
Council voted last August to implement the ban on water pipes in enclosed public spaces, workplaces and on restaurant patios. Politicians relied on advice from the health unit that the water pipes, including hookahs, normalized smoking as the city was working to get people to stop smoking.
The city heard from hookah bar owners concerned about losing the cornerstone of their business.
Legal battles involving water-pipe bylaws have happened in other parts of Canada.
Toronto-area hookah bar owners have put up a fight in that region over a bylaw. A similar bylaw in Vancouver faced a legal challenge, but the courts sided with that city in 2014 and again after an appeal in 2015.