‘Bar’ owner denies wrong doing, but city resident finds justice in court …

From the CapeTowner, by Monique Duval, 4th August 2011

Burg Street resident, Quahnita Samie is glad that O’Driscoll’s Irish Pub was found guilty of causing a noise nuisance. The City took the pub to court after receiving affidavits and complaints from Ms Samie over the past two years and after a long court battle, owner Alan Dunne was found guilty at the municipal courts on Wednesday July 13. However, Mr Dunne is planning to appeal the ruling on the basis that the “magistrate erred when reviewing the evidence”.

Ms Samie who returned from an overseas trip was glad to hear the news. She said she had endured many sleepless nights since moving into the area in 2009. “I am glad that the pub was found guilty of the offence; it has been an unpleasant experience and I hope that Mr Dunne will stop the loud music and heavy bass. “Should he wish to trade in such a manner then it is imperative that he take necessary steps to soundproof the premises. “I am also glad that I did not choose to leave my home and sincerely hope that the intimidation and constant reference to me having a vendetta against him will stop. I just really want to enjoy my home. “I would have assumed that given the outcome there would have been consequences in terms of a fine or an issue prohibiting the pub from playing loud music.

The regulations make reference to a fine or imprisonment or both if found guilty of an offence and in the event of a continuing contravention. “Reference is also made to confiscating equipment being used to generate music and amplified sound. I trust that these measures will be implemented should the matter be ongoing. The authorities need to be harsh as this case has dragged over a long time,” she said. However, Mr Dunne said he would be appealing the ruling on the basis that the magistrate erred when reviewing the evidence. Mr Dunne told the CapeTowner that one of the witnesses in the case, [Removed] who lived in the building next to Ms Samie and closer to the pub testified that she had not experienced loud music coming from the pub.

He said [Removed] had a “nervous” cat which was unaffected by the activities at the pub. Mr Dunne said he takes exception to excerpts from the ruling in which the judge said because [Removed] lived next to the pub she would not be affected by the noise. “This is wrong. She lives opposite the pub just like Ms Samie so if there was any noise then she too should have been affected. There were many anomalies in the ruling and my lawyers will be lodging an appeal soon,” he said. Mr Dunne said the ordeal had resulted in his pub losing business over time. “Ms Samie makes constant phone calls to the Central City Improvement District (CCID), The Metro Police and SAPS. “It’s bad for business and my profits are down my at least 20% because of this. Imagine you are having drinks with friends at my pub and you constantly see police coming to the premises. People will start to think there is something dodgy here and stop visiting the pub. This is not a night club it’s a pub,” he said.

Councillor Lungiswa James, Mayoral Committee Member for Health said the City summonsed Mr Dunne to court for causing a noise nuisance and for trading without a valid health and entertainment licence. The noise nuisance charge was supported by affidavits from Ms Samie. He said the first complaints about the pub were received in December 2009. According to the ruling Mr Dunne was found guilty and cautioned. When asked what the penalty was for being found guilty Mr James said: “The imposition of a sentence is at the discretion of the presiding officer. A warning or caution is not that unusual. Whether a pecuniary fine, alternatively imprisonment or a warning is given, the effect is that it is still being considered as a conviction for record purposes”.

In previous statements City Health director, Dr Ivan Bromfield confirmed that the pub was trading without a health and entertainment license. Mr James said Mr Dunne applied for a licence in April 2010 but said it was not issued as he had not complied with requirements set by the fire and health departments. “During his last court appearance on Wednesday July 13 Mr Dunne verbally withdrew this application,” Mr James said. Mr Dunne said the health and entertainment licence only applied to establishments who wanted to have live music playing and said he applied for one after being informed by City officials he was required to do so. He said because he hardly had live bands playing he didn’t need the licence. When asked whether the ruling would now count against Mr Dunne if he did apply for a health and entertainment licence, Mr James said: The Businesses Act allows for the criminal record of a person applying for a health and entertainment licence to be interrogated, and the contents to be taken into consideration when determining the suitability of the applicant to hold such licence. “It is standard procedure to submit the criminal record of applicants to sub-councils to aid in the decision making process”.

Byron Qually, convenor of the Long Street Residents’ Association (LSRA) said they welcomed the ruling. “Ms Samie made countless attempts to inform the pub owner of noise pollution emanating from his establishment which was affecting her residential block. Instead of working with the residents to find a solution, the owner of the pub just choose to ignore her. “Even when confronted by noise measurement readings and Mayoral Committee member for Safety and Security, JP Smith (“Pub battle rages on”, CapeTowner, March 31) who came to personally review the situation, the owner remained defiant. “The LSRA was aware of what Ms Samie had to go through to resolve this matter, I sincerely hope her ordeal is not the benchmark for other residents. It is frustrating to be aware of how long it took for the issue to be resolved, and how many court appearances the owner did not turn up to, and most shamefully, how the noise pollution staff at the City’s Health Department tended to hide behind bureaucratic confusion. “It is also irresponsible, and possibly even illegal, for a company owner to be so openly reckless with his business, and directly place the livelihood and financial security of his staff at risk,” Mr Qually said.

Copyright Cape Community Newspapers, part of Independent News and Media.

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