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SPECIAL COUNCIL
MEETING – RECONSIDERATION HEARING MINUTES
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Wednesday, 2019 October
16
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A Special Open meeting of the City
Council was held in the Council Chamber, City Hall, 4949 Canada Way, Burnaby,
B.C. on Wednesday, 2019 October 16 at 6:00 p.m.
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PRESENT:
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His Worship, Mayor Mike Hurley
Councillor Pietro Calendino
Councillor Sav Dhaliwal
Councillor Dan Johnston
Councillor Colleen Jordan
Councillor Joe Keithley
Councillor Paul McDonell
Councillor James Wang
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ABSENT:
STAFF:
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Councillor Nick Volkow (due to
illness)
Mr. Lambert Chu, City Manager
Mr. Dipak
Dattani, Director Corporate Services
Mr. Dave
Critchley, Director Public Safety & Community Services
Ms. May
Leung, City Solicitor
Cpl. Brian
Kermer, Burnaby RCMP
Mr. Dan
Layng, Chief Licence Inspector
Mr. Simone
Rousseau, Manager Environmental Services
Mr. Vincent
Wong, Environmental Services Officer
Ms. Kate
O’Connell, City Clerk
Ms. Blanka
Zeinabova, Deputy City Clerk
Ms. Nikolina
Vracar, Administrative Officer 2
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The Special
Open Council meeting was called to order at 6:01 p.m.
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His Worship, Mayor Mike Hurley recognized
the ancestral and unceded homelands of the
hən̓q̓əmin̓əm̓ and Sḵwx̱wú7mesh
speaking peoples, and extended appreciation for the opportunity to hold a
meeting on this shared territory.
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Pure Hookah Lounge Inc. submitted a
request, appealing the Chief Licence Inspector’s decision to cancel the
Burnaby Business Licence.
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The City Manager
submitted a report from the Chief Licence Inspector providing Council with
information on the reasons that led to the cancellation of the Burnaby
Business Licence for Pure Hookah Lounge Inc.
Mayor Hurley called upon
the Chief Licence Inspector to present the report to Council.
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The
Chief Licence Inspector summarized the report noting that on 2019 January 3,
the RCMP advised the City that they have been called to 3863 Hastings Street on
multiple occasions in previous weeks due to citizen complaints about late
evening and early morning noise.
The
Licence Office staff gathered information from Pure Hookah social media
websites and the Chief Licence Inspector referred to page 3, paragraph 1 of the
report. Information gathered through the social media websites revealed that
Pure Hookah advertised operational hours until 4 a.m., and the business was
promoted as hosting special events such as Halloween, New Year’s Eve, as well
as DJ’s playing music and alcohol services.
The Licence Office staff
reviewed the complaint calls from the RCMP and the City’s Engineering Department
related to the business, described in the report on page 3, 3rd and
4th paragraphs. From 2018 December 09 to 2019 March 13, the RCMP
reported over 20 calls for service to Pure Hookah, responding to 19 of the calls
regarding late evening and early morning business operations. The RCMP officers
attending in response to the complaints reported encountering loud music at the
business. In some instances the RCMP were required to re-attend on the same
evening after previous verbal warning.
The
Engineering Department staff from Environmental Services, reported that between
2018 April 14 and 2019 March 13, they received over 30 noise complaints
relating to the late night operations of the business. Staff conducted a review
of the actions taken to-date to determine if appropriate measures had been
implemented to resolve the issues, including:
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The
business and property owners had been made aware of the complaints and noise
issues and the negative impact it was having on the neighbourhood (attachment
3, summary of Engineering complaints and related actions):
o The Engineering Department
makes note of notifying the business and property owners by way of letter on
2018 April 14 and again on 2018 May 14.
o In addition to the letters,
calls were made to the business owner and property owner on 2018 May 17 to
advise of the noise related issues.
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After
confirming that the business owner and property owner had been notified of the
noise concerns, the License Office staff then looked to see if the business or
property owners had received any bylaw violation notices for bylaw
non-compliance:
o Attachment 10 of the
report, identifies two bylaw violation notices issued to both the business
owner and property owner for Owner/Occupier to allow noise to disturb the
neighbourhood.
o The violation notice issued
to the property owner has been paid.
o The violation notice issued
to the business owner was not disputed within the fifteen (15) day time period
identified in the legislation, and is currently unpaid.
Having determined that the
business owner and property owner were fully aware of the concerns related to
the noise and had received bylaw violation notices, the Chief Licence Inspector
invited the business to a meeting on 2019 March 14 (page 4, 2nd
paragraph). At this meeting the Chief Licence Inspector made the business aware
of the City’s concerns regarding the business’ operations, and the primary
concern was the noise generated by the late night business operation and the
negative effect on the peaceful enjoyment of the surrounding properties.
Operators were further advised that their operations had resulted in an
inordinate amount of RCMP calls for service, over 20 calls from 2018 December 9
to 2019 March 13, compared to similar hookah type businesses within the City.
After the 2019 March 14 meeting,
the City received nine (9) more complaints between 2019 March 14 and 2019 April
2. The RCMP also reported an additional five (5) calls in relation to noise
during the same time period. The RCMP calls from 2018 December 9 to 2019 April 2
totaled at twenty-seven (27) complaints.
As a result of the
continuing complaints, City staff created a table that identified complaint
calls made to the RCMP and the time that the complaints were received (table on
page 5 of the report). It was noted that the majority of the complaints (19/21)
were received after 11:00 p.m. On this basis, in an effort to mitigate the
noise impact on the neighboring properties and to reduce the RCMP calls for
service, while also permitting the business to continue to operate, the Chief
Licence Inspector opted to limit the hours of operation of the business from 7:00
a.m. to 11:00 p.m. daily as per his authority under the Burnaby Business
Licence Bylaw 2017, Section 3.2. The Chief Licence Inspector believed that sufficient
cause existed to warrant placing conditions on the business licence in respect
to business hours of operation. Correspondence detailing the limitation of
business hours were mailed to Pure Hookah on 2019 April 3.
After the 2019 April 3 letter
was sent to Pure Hookah, the City received fifteen (15) additional complaints between
2019 April 3 and 2019 July 2, reporting business activity past the permitted
hours of operation. The RCMP also received six (6) calls for service related
to late night noise after 11:00 p.m. Upon responding to the calls, the RCMP
found the business operating with customers on site beyond 11:00 p.m. on 2019
April 7, 2019 June 8, and twice on 2019 June 29. As a result of RCMP
attendance at the business on 2019 April 7, the Licence Office issued a Bylaw
Violation Notice to Pure Hookah on 2019 April 07 for failure to comply with
terms or conditions of the business licence (attachment 11). The Notice
remains unpaid and was undisputed within the fifteen (15) day time period.
As a result of the ongoing
bylaw violations, the Chief Licence Inspector informed Pure Hookah Lounge Inc.
by letter dated 2019 July 3 that the business licence has been cancelled
pursuant to Section 7.1 of the Burnaby Business Licence Bylaw 2017 and Section
60 of the Community Charter (attachment 2). The Chief Licence Inspector’s
presentation of the report then concluded.
Mayor Hurley inquired if
Council had any questions for the Chief Licence Inspector at this time. With no
Council member requesting to speak, the Chief Licence Inspector was dismissed
from the presentation desk.
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A)
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Dean
P. Davison and Dale R. North
Counsel
for Pure Hookah Lounge Inc.
Re:
Reconsideration Hearing Submission
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Counsel for Pure Hookah Lounge Inc.
provided a written submission seeking Council 1) reconsider and overturn the
decision of the Chief Licence Inspector, 2) reinstate Pure Hookah’s business
licence, and 3) overturn any Bylaw Violation Notices related to this matter.
His Worship, Mayor Mike Hurley
stated that Council may only consider the first two requests, as Bylaw Notice
appeal processes are governed by the Local Government Bylaw Notice
Enforcement Act and the Burnaby Bylaw Notice Enforcement Bylaw
2009.
Mayor Hurley called the business
representatives to the presentation desk so they may present their appeal to
Council.
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Mr. Manbier Singh (Owner) , Mr. Jason
Jose Singh (owner’s brother), and Mr. Dean Davison (legal counsel) appeared before Council.
Mr. Davidson stated that the
submission by the Chief Licence Inspector did not include evidence that Pure
Hookah had breached City bylaws. The speaker referred to City bylaws and
reviewed the decibel levels limits and the times at which the limits apply. Mr.
Davidson acknowledged that the tickets issued are not the issue, but rather
that the business be permitted to stay open.
Mr. Davidson believes that only
small group in the neighbourhood is responsible for the majority of the
complaints. The speaker drew to the attention of Council the Burnaby RCMP
comments contained within the report from the Chief Licence Inspector’s stated
the complaints were a civil matter. If neighbours don’t like what another
neighbour is doing there are options, including issuing complaints and that
the City is now trying to address the complaints. However, the City is not
responsible for resolving all complaints, and has taken the wrong action in
its decision to close Pure Hookah.
Pure Hookah Lounge opened in 2017
and there were no complaints at that time, then repeat complaints began
later. Complaints should not necessarily result in closure as noise is part
of living in a city. Mr. Davidson stated that the specific decibels in the
bylaws that were required to be breached to justify the closure were not
recorded, and the RCMP was guessing that a breach of the Bylaw occurred.
Mr. Davidson referred to a letter
from the property owner stating that the owner was aware of the business type
and supported the activities of the business including loud noise at certain
times of the day. If neighbours do not like the noise or feel that the noise
is nuisance legally then they could sue the landlord, and sue the business
which may be difficult, and they likely would not win as the noise was not
beyond the level permitted in the Bylaw.
Mr. Davidson referenced the Chief
Licence Inspector’s comparison of complaints received regarding different
hookah lounges in the City. The speaker stated that the decibel levels were
not recorded at other hookah lounges and that the complaints made about Pure
Hookah are made by only a few individuals wanting to get a better sleep. Mr.
Davidson believes that Pure Hookah Lounge noise is not greater than other
hookah lounges and questioned if Pure Hookah was a local pub and people were
complaining would they similarly be shut down.
Mr. Davidson referred Council to the
submission by Pure Hookah, and spoke to the options of judicial review
available to the business owners. It is the position of the business that
without having the evidence of the breach of the Bylaw, the decision to
change the hours and effectively the decision to close the business was
arbitrary and improper. The Chief Licence Inspector’s report does not contain
evidence of a breach of the Bylaw, doesn’t compare apples to apples but
references a lot of complaints that could be from one or two people, it does
have the police showing up too much but the business has done nothing wrong.
Mr. Davidson requested Council
reconsider the decision of the Chief Licence Inspector and not cancel the
licence. The owners would like to stay and contribute to Burnaby. The speaker
noted problems with the business licence classification as a lounge and that
this was not the proper licence. When the business applied for their licence,
the City knew the business type, the hours of operation and there is no
evidence that the Bylaw was breached. If neighbours don’t like the noise
then they can wear ear plugs, or close a window, or do something that will
allow them to live in a city as noise is part of city living.
Mr. Davidson stated that the
business will work with the City to address the issues and that the reason
the business was closed was due to the number of complaints and not resulting
from a breach of the Bylaw.
Mr. J. Singh noted that he has a
letter from the landlord with signatures from the building occupants and they
have no problem with the business operating. The next closest building is
280m away and it is practically impossible to hear noise from that far away.
The speaker question who the complainants are as they are not building
occupants, they could be calling from Abbotsford, the business does not know.
The speaker noted that restaurants, i.e. Cactus Club, are very noisy and that
Pure Hookah Lounge’s noise levels are below that of Cactus Club – will the
City now shut down all the Cactus Clubs in Burnaby? The decision to cancel
the business licence is taking away the only livelihood of his brother and is
not fair.
Mayor Hurley inquired if Council had
any questions for the business representatives at this time. With no Council
member requesting to speak, the business representatives were dismissed from
the presentation desk.
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MOVED BY
COUNCILLOR calendino
SECONDED BY
councillor johnston
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THAT Council, in accordance with
Sections 90 and 92 of the Community Charter, do now resolve itself into a
Closed meeting from which the public is excluded to consider matters
concerning the receipt of advice that is subject to solicitor-client
privilege, including communications necessary for that purpose.
CARRIED UNANIMOUSLY
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MOVED BY
COUNCILLOR calendino
SECONDED BY
councillor keithley
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THAT the Special Open Council
meeting – Reconsideration Hearing do now recess.
CARRIED UNANIMOUSLY
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The Special Open Council
meeting – Reconsideration Hearing recessed at 6:32 p.m.
Council left the Council
Chamber, and conducted the Closed portion of the meeting in the Council
Committee Room, from which the public were excluded.
CLOSED PORTION OF THE MEETING
Upon the adjournment of
the Closed portion of the meeting, Council returned to the Council Chamber and
the Reconsideration Hearing resumed.
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MOVED BY
COUNCILLOR johnston
SECONDED BY
councillor calendino
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THAT the Special Open Council
meeting – Reconsideration Hearing do now reconvene.
CARRIED UNANIMOUSLY
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The Special Open Council
meeting – Reconsideration Hearing reconvened at 6:54 p.m.
His Worship, Mayor Mike
Hurley called forward the Chief Licence Officer and the RCMP member to
the presentation desk.
A Council member asked
what section of the Noise or Sound Abatement Bylaw the violation notices were served
under?
The
Chief Licence Inspector advised that the violation notice was issued under
Section 4(a) of the Noise or Sound Abatement Bylaw.
A
member of Council noted that Section 4(a) is more broad then what is required
under 4(b).
A Council member inquired if
Section 4(a) of the Noise or Sound Abatement Bylaw required a 60 decibel
minimum before a violation ticket can be issued.
The
Chief Licence Inspector requested the question be addressed by the City’s Environmental
Services Officer.
The
Environmental Officer joined the Chief Licence Inspector and the RCMP
member at the presentation desk and advised Council that Section 4(a) is a general
disturbance clause and there is no decibel limit in that section and
is based on the complaints received and different people complaining.
A
Council member inquired if the complaints received were from the same
individual.
The
RCMP member noted that it was multiple complainants.
A
Council member referred to the decreased business hours, referenced that
complaints had been received outside of the permitted operating hours, and
inquired if that was a violation of City bylaws.
The
Chief Licence Inspector noted that it is a violation of business licence; and
the business was issued a bylaw violation notice for 2019 April 7. There were
two additional times when the business was found to be operating past the
permitted hours of operation and that resulted in the cancellation of the
business licence.
A
Council member inquired as to the actual date that the business licence had
been cancelled.
The Chief Licence Inspector
advised that the licence was cancelled on 2019 July 3.
A
Council member noted that the business licence had been cancelled on 2019
July 3; however, the RCMP reported a call on 2019 August 10 and referred to a
letter from the business informing the City the business would remain open
regardless of not having a business licence.
The
Chief Licence Inspector confirmed the information summarized by the member
of Council.
A
Council member inquired regarding seating capacity, and if it was 30 seats.
The
RCMP member clarified that the capacity under the licence is 30 occupants,
which includes staff.
The
Council member referenced the RCMP comments that stated there had more than
30 occupants observed.
The
RCMP member confirmed that repeatedly the RCMP had observed more than
30 occupants in the business and that they had engaged the Fire Department
to try and bring the number down.
The
Council member asked if there was substantially more occupants observed than
permitted.
The
RCMP member stated that on different occasions the RCMP counted the
occupants as 32, 35, and 39.
A Council member inquired about
the authority of the Chief Licence Inspector to limit the hours, and inquired
as to why 11:00 p.m. was chosen as the operating hour restriction.
The Chief Licence Inspector
referred to the report noting the large number of complaints received by the
City and RCMP occurred after 11:00 p.m. (19/21). Based on those complaints the
decision was made to restrict the hours of operation to 11:00 p.m.
The Council member inquired
as to when the letter outlining the hour restriction was sent to the business.
The Chief Licence Inspector
stated that the letter was sent to the business owners on 2019 April 3.
The Council member asked if
complaints were received beyond 11:00 p.m. after the hours had been restriction
on 2019 April 3.
The Chief
Licence Inspector confirmed that further noise complaints were received,
and the business operated on occasion beyond 11:00 p.m. after 2019 April
3.
The Council
member inquired if the complaints were similar to past complaints,
such as noise and disturbance.
The Chief
Licence Inspector confirmed that the complaints were similar.
A Council member noted
that the Chief Licence Inspector has the right to reduce business
hours and stated that the City continued to receive complaints, and that
the Chief Licence Inspector took the initiative to cancel the licence.
The Chief
Licence Inspector noted that the City issued two violation notices
for operating outside of the permitted hours, and had received two additional
complaints in which violations notices were not issued prior to the
cancellation of the licence.
The Council
member inquired if the Chief Licence Inspector had explained to the
business why the hours had been reduced.
The Chief
Licence Inspector confirmed that the business was informed.
The Council
member inquired if the business owners were made aware that the City was
receiving complaints after the permitted hours.
The Chief
Licence Inspector confirmed that the business was aware of the complaints
as they were issued a violation notice.
With no further questions
from Council, the Chief Licence Inspector, the RCMP member, and the
Environmental Officer were dismissed from the presentation desk.
Mayor Hurley requested the
business owner and representatives come forward to the presentation desk, and
asked Council if they had any questions for the business representatives.
A member of Council
referenced the submission by the business and the statement that
the business appreciates that the City has a role in ensuring the health
and safety of the community and that the decision to cancel the business licence
does not further that purpose. In regard to the safety, the business licence
permits occupancy at 30 people, yet on several occasions the occupancy was
greater than the permitted occupancy, including reports of occupancy at 45, 50-60,
and as many as 90 people present. The member of Council believed this to
be a flaunting of the bylaw, and the occurrences of the business operating beyond
11:00 p.m. after the hours were reduced on 2019 April 3. The Council member
is concerned about the safety of patrons when the occupancy is beyond the
permitted occupancy, and that the safety risk is greater because there is charcoal
and fire issues that heighten the safety concern. Even after repeated warnings
the business continued to operation and have occupancy levels beyond what
is permitted or safe. The Council member stated that the business continued
to break the rules after it has been brought to their attention that they are
not supposed to operate that way.
Mr. Davidson did not find
the points raised by the member of Council unreasonable; however, the City did
not ticket the business based on occupancy. The business owners made an effort
to get the occupancy numbers down to a reasonable amount and were somewhat
successful. There was a breakdown in trust and communication when the business owner
was being told inaccurate information, specifically that they were breaching
the bylaw due to noise. Section 4(a) of the Noise or Sound Abatement Bylaw
should specify a decibel level. If the business is successful in having the
decision of the Chief Licence Inspector overturned the business would focus on
following all of the laws or the City would be able to shut them down again.
Mr. J. Singh, addressed
Council and stated that when the RCMP visited the business after the licence
had been cancelled, all four times the occupants included family members of the
business owners that were cleaning the equipment. Mr. Jose Singh stated they
were open, and were not closed, but that there were not many people there, and
those who were there were family and not customers. No one can stop the family
members from going to the business, they have to go in to clean the hookahs,
floors and tables. The speaker stated the RCMP responded to noise complaints
after the business was shut down, and questioned what caused the complaints as
there was no noise and no people, and believes people are complaining against
the business for no reason.
Mr. J. Singh continued,
regarding the 30 person occupancy limit, and stated that any time the RCMP came
to them and did a physical count and the business was over occupancy, Mr. J.
Singh made sure that all the customers were out and tried to limit the
occupancy. The business does not currently have a bouncer, but going forward
will hire a bouncer to ensure appropriate occupancy levels. The business did
not expect to be so busy and recognized they are a small establishment, but is
a culturally alive place. Security will have an occupancy clicker to ensure
occupancy is in line with the licence.
A Council member referenced Section
4(a) of the Noise or Sound Abatement Bylaw, and stated that the more people you
have the louder the noise is, this is increased when people are kept in line
outside, as they also produce noise causing an inconvenience and disturbance to
the neighbourhood.
A Council member referred to
advertising by the business that stated business hours until 4 am on Saturday
night.
The business confirmed
that they are open those hours.
With no further questions from
Council, the business representatives were dismissed from the presentation
desk.
Mayor Hurley stated that the question
before Council is if there was reasonable cause to cancel the business licence.
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MOVED BY
councillor johnston
SECONDED BY
councillor jordan
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THAT Council uphold the Chief
Licence Inspector’s decision to cancel the business licence for Pure Hookah
Lounge Inc. to operate at 3863 Hastings Street.
A Council member stated that the
Chief Licence Inspector was within his right to exercise his responsibility
to make sure there is reasonable peace and quiet in that area of the
neighbourhood by reducing the hours. The member of Council stated that after
the hours were reduced on 2019 April 3 that a violation notice was issued to
the business in May, for operating at 1:30 a.m. The Council member stated
that he believed the Chief Licence Inspector had enough reason to cancel the
licence, and was correct in doing so.
Another member of Council also
stated his support for the Chief Licence Inspector’s decision to cancel the
licence, as the report outlines the defiant practices of the business
operators that disregarded the conditions and restrictions placed on their
business by the City.
With no further questions from
Council, the original motion was then put.
THAT Council uphold the Chief Licence
Inspector’s decision to cancel the business licence for Pure Hookah Lounge
Inc. to operate at 3863 Hastings Street.
CARRIED UNANIMOUSLY
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MOVED BY
councillor jordan
SECONDED BY
councillor keithley
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THAT this Special Open Council
meeting – Reconsideration Hearing do now adjourn.
CARRIED UNANIMOUSLY
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The Special Open Council meeting –
Reconsideration Hearing adjourned at 7:19 p.m.
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Confirmed:
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Certified
Correct:
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________________________
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________________________
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Mayor
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City Clerk
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