heres the details
Strip club sues Region over smoking bylaw
By Jennifer Kennedy
Thursday, February 05, 2004 - 01:00
Local News - The owner of a Thorold strip club is challenging Niagara Region’s smoking bylaw in court, maintaining its enactment was illegal and that it creates an unfair playing field.
Simo Rudan, proprietor of Cristal Gentlemen’s Club on Lundy’s Lane, is asking the court to find the Region’s new bylaw, which bans smoking in most public places, invalid.
The strip club cannot “compete for clientele, equally, fairly and equitably against the gaming establishments, or facilities therein,” a statement of claim filed recently in St. Catharines maintains.
The bylaw “creates a systemic economic advantage in favour of gaming establishments, in that such establishments, which are grossly affluent entities, and which could afford to undertake constructing ventilated smoking rooms, are not, in fact, required to do so,” it says.
The bylaw, which came into effect May 31, 2003, banned smoking in enclosed public places in Niagara, including restaurants, bars and workplaces.
However, it exempts casinos and racetracks, plus outdoor public places and designated ventilated smoking rooms within public places.
In the days following the bylaw’s enactment, Rudan was one of the first people charged with violating it. He attempted to represent the strip club as a private club.
In an 11-page statement of claim filed at the St. Catharines courthouse in December, Rudan maintains the Region didn’t have authority to pass the no-smoking bylaw. He also maintains the bylaw is discriminatory.
The suit lists Rudan and his company as plaintiffs and Niagara Region as the defendant.
“The statement of claim is without merit,” Niagara Region Chairman Peter Partington said Wednesday. “We certainly stand by our bylaw to create a healthy environment for the citizens of Niagara region.”
Partington said he would not comment further on the case while it is still before the courts.
While the statement of claim admits municipalities can have the authority to pass no-smoking bylaws, it maintains in this case the Region didn’t have the required permission.
It says the authority rests with lower-tier municipalities and that the Region could only pass the bylaw if the majority of the 12 lower-tier municipal councils approved and gave jurisdiction to it to do so. But in this case, only two gave permission, it says.
Therefore, the bylaw is “not binding on the ratepayers throughout the upper-tier municipality and accordingly, of no force and effect.”
In the alternative, the suit urges the court to find the bylaw groundless because it is discriminatory against the strip club in favour of casinos and racetracks.
It allows “an unfair competitive advantage to them, or a monopoly, at the expense of the plaintiffs’ and others within its class.”
It says there is “no specific rationale, contained within the bylaw exempting the gaming establishments.”
Listing the similarities between the strip club and gaming establishments, the suit maintains both serve liquor and food, provide entertainment to adults and depend on the tourist trade.
“The regional bylaw has created a situation whereby restaurants and bars cannot cater to the full range of potential clientele … unless a designated smoking room is constructed.”
But such a room would cost the club $300,000, it says.
Provincial legislation enabling the bylaw exempts gaming establishments and any establishments that hold a liquor licence, it says.
But the Region’s bylaw discriminates by only exempting gaming establishments, the statement of claim says.
This “renders the bylaw, in its entirety, of no force and effect,” the suit says.
In the statement of claim, the club owner says he is seeking legal costs for the suit.
When contacted Wednesday, Thorold Mayor Robin Davidson said she’s not surprised the club has launched the challenge. “Representatives from Cristal’s Gentlemen’s Club have been coming to council since the inception of the bylaw and have argued against it prior to it getting put into place,” she said. “So I am not surprised that they are going to challenge it further. I just hope that the bylaw has the strength to withhold any challenge so that we can move ahead.”
