Tag Archives: O’Driscoll’s

Understanding the law and how clubs operate without a license …

From the CapeTowner, by Monique Duval, 15th August 2011

Business licences, trading hours and lack of enforcement were the topics of discussion when residents met with City officials to tackle noise battles in the CBD. The Long Street Residents’ Association (LSRA) requested a meeting with Councillor Dave Bryant and other roleplayers including the Central City Improvement District (CCID) to raise concerns about clubs trading without the necessary licences and causing a noise disturbance. LSRA convenor Byron Qually said after two years of complaints there was no longer a question about whether there was a noise problem. He asked why bars and nightclubs were allowed to continue operating without health and entertainment licences. He highlighted O’Driscoll’s Irish Pub in Burg Street, where the owner had been found guilty in court for causing a noise nuisance, but continued to operate.

Mr Bryant read a response given by health director, Dr Ivan Bromfield which said the City did not allow or condone business that operated without a licence despite being fined or convicted in court. “The law enforcers are, however, reliant on either successful noise level readings or affidavits from affected persons before the repeat offenders can be summonsed back to court,” Mr Bryant said. Good Hope Sub-council chairperson, Taki Amira, said many of the problems faced by the City were a result of the municipality being tasked with carrying out national legislation. “To start, we must note that in order to operate a nightclub, you need two things. A liquor licence and a health and entertainment licence. The issue is that the Business Act is national legislation and the sub-council cannot refuse applications if all the requirements are met. For instance, we receive applications for adult entertainment businesses and while we would like to reject them we can’t if they meet the requirements,” Mr Amira said. He said among the problems faced by the City was the granting of temporary liquor licences. “Once they have that they start operating. We contact law enforcement agencies who visit the premises to check if their paperwork is in order. When we find that they do not have the appropriate licences they are fined. In some cases this deters them from trading but in other cases this is petty cash for them,” he said.

CCID security manager, Muneeb Hendricks said one way in which residents could assist was by keeping an eye on liquor licence applications. “We conducted an ‘exploratory mission’ to take a look at the noise problem. “What we found is that it is often difficult to single out a club because of the ambient noise. We should look into the possibility of compiling a report for residents which looks at what they can do to help. This issue was also discussed in the Cape Town Central Community Police Forum Meeting (CPF) and it’s important to remember that residents can make objections to the Liquor Board in the granting of liquor licences to problem clubs,” he said. Burg Street resident Ashley Lillie said in his opinion the biggest problem was the lack of co-ordination between City departments dealing with noise issues. Residents also questioned the methodology used when conducting noise readings.

Geoff Madsen, one of the developers of Flatrock Suites in Loop Street said that when he first decided to develop the residential block which also consists of hotels suites he loved the idea of bars, pubs and clubs in the area. Mr Madsen invited the CapeTowner to hear the noise emanating from Chez Ntemba nightclub in August. During the visit, the CapeTowner witnessed the roof of the club lifting and heard heavy bass coming from the premises (“Noise raises the roof”, CapeTowner, August 11). “Our residents and guests support these establishments and we have no intention of closing them. All, we ask is for them to comply with the law. “Now we have to spend R2.5 million on soundproofing. We have been complaining for more than four years about a certain club and it seems our concerns have fallen on deaf ears,” he said.

Mr Bryant said that after assessing the problems faced by Mr Madsen he too had some concerns. “How can a building which has a tin roof provide any kind of soundproofing,” he asked. At the meeting residents and officials also discussed the possibility of accompanying officials from the City’s Health Department when noise readings are done in the CBD as well as the possibility of funding additional law enforcement officers to inspect clubs when complaints are received.

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

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The following outlines the minutes taken by the LSRA at the aforementioned meeting:

Attendees: City: Councillor David Bryant and Subcouncil Chair Taki Amira
City Health Department: Lavinia Petersen and colleague
CCID: Mo Hendricks
CapeTowner: Monique Duval
LSRA: Approximately 10 individuals.

Document provided by the City Health Department on the LSRA questions:

Why are bars still able to operate knowingly without a license?

No answer provided.

Why are convicted bars owners allowed to continue with their illegal behaviour?

Some operators continue despite being fined or convicted in an court of law. The City does not allow or condone this type of behaviour. The law enforcers are, however, reliant on either successful noise level readings or affidavits from affected persons before the repeat offenders can be summonsed back to court.

Since 2009, what systems have the City Health Department introduced to assist residents with noise concerns?

The City enforces the Noise Control Regulations which allow for offenders to be fined in terms of exceeding the allowable noise limits and/ or to be summonsed to a court of law. The following systems are currently in place:
– Procedure for summonsing an alleged offender to court via the ‘noise nuisance” procedure in terms of the Noise Control Regulations. This procedure is based on affidavits from affected persons.
– Procedure for summonsing an offender to court when exceeding the noise limits – ‘causing a disturbing noise’. This procedure is based on successful noise level readings.
– Mandatory soundproofing via the Business licensing system.
– Arrangements for combined actions from various Departments are in place. Examples of these are where City Health with Law Enforcement or even SAPS. The CIDS are also included — especially on night-time surveys.
– Availability of staff in the Western district for night inspections increased from once every 6 weeks to every two weeks. This is especially useful where complainants do not want to provide affidavits.
– Increased the level of health court action against premises trading without business licences.
– Agreement reached that health would be informed of all complaints regarding noise that is received from the Call Centres. (Shannon and myself would receive and interrogate and forward as needed if action from City Health is needed – still in infancy and needs refinement as we have only received 6 complaints so far.)
– Regular meeting are held with all role-players involved in enforcement and legal actions where it relates to unlicensed business premises to enable better co-ordination and clear frames of reference.

Primary actions from the meeting:

– CCID and City: Exploring the option of a full time and dedicated sound task team, who are trained and authorised to intervene in noise disputes when they occur at night.
– City Health Department: To provide noise measurement test specifications, test procedure and acoustic report to the LSRA, and to invite members to a testing session.
– CCID: Provide a digital copy of their brochure on noise awareness to the LSRA for posting on the website.

‘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.

When the Metro Police were trying to issue a fine, Mr Dunne refused to give …

From the CapeTowner, by Monique Duval, 31st March 2011

An irate Burg Street resident is so fed up with a noisy pub in her street that she has resorted to all sorts of desperate measures to get the owners to turn down the volume including calling Mayco member for Safety and Security Alderman JP Smith for help. Quahnita Samie said the O’Driscoll’s Irish Pub and Restaurant on the corner of Hout and Burg streets caused a disturbance on St Patrick’s Day (Thursday March 17).

She said the pub continues to play loud music even though the City has taken the owner to court for being a noise nuisance and trading without a Health and Entertainment licence. She claimed that owner Alan Dunne and his girlfriend Zelda Holtzman, former Western Cape deputy provincial police commissioner, were interfering with police officers and stopping them from taking action. “I have a letter from the City which clearly states that the pub’s owner does not have the relevant licence and it is not allowed to play loud music, but Ms Holtzman kept interfering and telling officers they had a licence,” she said. She said after calling various police agencies including law enforcement, Metro Police and SAPS she became fed-up after not receiving any help.

Ms Samie said out of desperation she called Mr Smith in the early hours of the morning for assistance. “When I phoned him, he told me about the public places and the prevention of noise nuisance by-law and the proposed amendments which will allow City officials to impound the sound equipment of noisy pubs, clubs and restaurants. He seemed unable to assist so I decided to leave my home for the evening,” she said. However, Mr Smith arrived at Burg Street to see for himself, but by then Ms Samie had already left. Mr Smith said he arrived at the pub and tried to speak to the owner.“There was an obvious noise disturbance, I have never been to the pub before but I could hear the music from Strand Street,” he said.

Mr Smith said he called the Metro Police for assistance and tried to speak to the owner. He said an argument started between himself and Mr Dunne, who he said was “belligerent, aggressive and unpleasant”. “He stood for 30 minutes just insulting me. When the Metro Police were trying to issue a fine, Mr Dunne refused to give his name. He continued to argue with me and I tried to explain that because he had no noise abatement he was breaking the law and causing a nuisance to residents. He said that only one resident had complained but I informed him that it didn’t matter how many residents complained the point is the pub was breaking the law,” Mr Smith said.

When asked whether he could confirm Ms Samie’s allegations that Ms Holtzman was interfering, Mr Smith said: “She was definitely interceding by giving officers inaccurate information. “I had to continually refer them to their fine books showing them that the pub was in fact breaking the law and it needed to be fined.” However, Mr Dunne has denied all the allegations and said the pub was a respectable and quiet establishment. He said he was not aggressive towards Mr Smith and said in his opinion the Metro Police were bullied into issuing a fine. “Mr Smith came in here as if he was the chief of police. I later learned that he was a councillor and an Alderman,” Mr Dunne said. Mr Dunne confirmed that he was in a relationship with Ms Holtzman but denied that she interfered by giving Metro Police officers inaccurate information. “There were no grounds for police to take action as the bar was not transgressing any law so no, she did not interfere,” he said.

However, Mr Smith said he responded to the complaint to observe whether or not the allegations made by Ms Samie were true. He said Metro Police officers issued a fine based on the fact that the music could be heard outside the venue. Complaints Last year, Ms Samie spoke out about how she was affected by the noise (“Pub refuses to cork it”, CapeTowner, November 11). Ms Samie made several complaints to the City’s health department and has submitted affidavits. She first moved to the area in June 2009. She said the noise was unbearable and first raised her concerns with City officials in November 2009.

Executive director for the City’s health department Dr Ivan Bromfield said his department received the first complaint in 2009 and a warning letter was issued to the pub stating that they are trading without an appropriate health and entertainment business licence as required by the Businesses Act of 1991 and that they should apply for the necessary licence. The CapeTowner contacted the pub for comment at the time but the previous manager, who only identified herself as Claire, said she would see if she could get a response from the owner, Alan Dunne. No response was received.

Ms Samie is now a witness in this court case but said she was having trouble getting law enforcement agencies to help on St Patrick’s Day. The licence Mr Dunne said the pub first opened its doors in December 2006 and at that time it was known as Catu Irish Pub. The name was changed as he felt it was too cryptic and said the public weren’t aware that it was an Irish Pub and said he was the single owner. He said the first time he received noise complaints was when Ms Samie moved into the area. He said he did not apply for a health and entertainment licence as he had a liquor licence which shows he can play loud and live music as long as it did not cause a nuisance or disturbance to the neighbours. “I have to state, however, that it is an alleged noise, we have never had a problem with noise,” he said. He said his licence made provision for loud noise. Mr Dunne said he was informed that he needed to apply for a health and entertainment licence but said it applied only to establishments that play live music. He said he had applied for a health and entertainment licence but never followed it up as in his opinion it referred to live music and said the pub didn’t really have live bands performing.

However, on St Patrick’s Day when Ms Samie and Mr Smith alleged the incident occurred, the pub had a live band playing. Mr Dunne said he was being harassed by Ms Samie who he said made several calls to police officers and then accused them of not doing their job. He said the pub was only issued with fines after she accused them of not doing their job. When asked if it was his view that the pub was being fined because it was causing a noise nuisance, Mr Dunne said: “Absolutely not, there are occasions like St Patrick’s Day which is celebrated all over the world. And there is noise but not the kind of noise that causes a disturbance. Police have to respond to a complaint. It got to the point on St Patrick’s Day when people were on the street, but were moved inside and the police were happy. “But Ms Samie was not pleased and called the police again and another van arrived.”

In November Dr Ivan Bromfield confirmed that the pub was trading without a health and entertainment license. He said the City received complaints from Ms Samie. The matter was investigated and a warning letter was issued to the pub informing the owner that it was trading without the necessary licence. He said all premises keeping or conducting a night club or discothèque are required, in terms of the Business Act, to apply for the necessary health and entertainment licence. When asked what requirements establishments needed to fulfil before the licence can be issued, Dr Bromfield said: “A noise impact assessment and a noise management plan must be submitted to the City. These reports, compiled by an accredited acoustic engineer, must be to the satisfaction of the City. Any soundproofing measures, required by such reports, must be implemented and certified by the engineer and must be finally installed to the satisfaction of the City”.

Mr Dunne said he did not have to apply for a health and entertainment licence as the pub did not have live bands playing. Dr Bromfield said that all premises where live music, bands and shows took place needed to be in possession of a business licence issued by a licensing authority such as the City. “A licence issued by the Liquor Board is not done in terms of this Act and does not exclude any business from complying with the conditions contemplated in terms of the Business Act,” Mr Bromfield said. He said the City had received two noise impact assessment reports from the pub, but both were rejected due to non-compliance. Dr Bromfield said since the last report, the case has been postponed three times and the next court date is scheduled for Thursday, May 19.

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