City being sued over hookah ban
The City of Ottawa is being sued by a local business over the by-law banning the use of hookahs and water pipes in public places, such as restaurants and patios.
In a memo to councillors, City Solicitor Rick O'Connor says a notice of application has been filed in Ontario Superior Court by Brian Mahmoud, the owner of the Lebanese Palace on Industrial Avenue, and Fadi Itaif, a patron of that business.
The notice claims the by-law is unconstitutional because it discriminates against the cultural practices of Arab-Canadians.
"Smoking a water pipe is intimately connected to Middle Eastern and Arab culture, and is deeply rooted in tradition," the notice says.
In his memo, O'Connor notes the application, as written, is actually seeking to challenge 2001's smoke-free by-law and a pair of unrelated zoning bylaws, and not 2016's water pipes in public places bylaw.
"It is our preliminary assessment that the Applicants actually intended to challenge the Water Pipes in Public Places and Workplaces By-law 2016-303, and not the Smoke-Free By-laws 2001-148 and 2001-149."
The application contains typos that make reference to By-laws 2011-148 and 2011-149, which O'Connor notes are "zoning by-laws and do not relate to water pipes."
“In light of the foregoing, it appears that the Applicants will be required to amend their Notice of Application to properly reflect their intended legal challenge,” O’Connor suggests.
The notice is also seeking an injunction on the enforcement of the by-law, pending the result of a legal challenge. O’Connor says his staff will respond to that request after taking time to review the application. O'Connor adds the City will "vigorously defend against the by-law challenge."
By-law officers are able to issue fines for smoking hookah pipes in prohibited places as of April 3, 2017. The by-law first came into effect December 1, 2016.