Neighbor and Buffa’s battling in court over live music 'disturbance'

By Chelsea Partington | Aug 29, 2014

NEW ORLEANS – A corporation is suing Buffa's Restaurant and Bar, the company's owners and the city of New Orleans for allegedly causing a disturbance by allowing  live music and entertainment in the establishment.

1011 Esplanade Avenue Inc. filed suit against KS Ventures Inc., also known as Buffa's Restaurant and Bar, Frank P. Buffa, Vincent J. Buffa Jr. and The City of New Orleans through its Department of Safety and Permits in the Orleans Parish Civil District Court on June 23.t.

Though he is not mentioned in the suit, noted entrepreneur Sidney Torres IV has been the owner of 1011 Esplanade Avenue since 1999. The property located at 1011 Esplanade Avenue is Torres' former residence, and was on the housing market from December 2013 until early 2014.

The cited petitioner, Esplanade, alleges that Buffa's Restaurant and Bar, located at 1709 7th Street in New Orleans is bounded by the property 1011 Esplanade Avenue. The plaintiff asserts that Buffa's is open daily and/or nightly and maintains amplified music and entertainment illicitly.

According to the suit, noises emitting from Buffa's can be easily heard throughout the 1011 Esplanade address. Esplanade claims that the sound is loud enough to disturb anyone residing at its property, and creates a nuisance.

Esplanade further alleges that Buffa's is violating New Orleans noise ordinances, New Orleans zoning law and Louisiana alcohol and tobacco control laws. The plaintiff says that Buffa's lengthy residence and operation as a restaurant and bar excludes it from certain provisions of the 1995 New Orleans zoning ordinance, but asserts that Buffa's privileges do not extend to providing live entertainment.

In response to a citation from the City of New Orleans, Buffa's applied for a mayoralty permit in July of 2012 so it could offer live entertainment legally, says the suit. Because live entertainment is prohibited in the Historic Marigny/Treme zoning district where Buffa's is located, the restaurant was denied a permit, the suit says.

Esplanade asserts that Buffa's began gathering letters of support and other evidence to substantiate the bar's claim that it had been providing live entertainment for two years prior to the citation without having been previously notified about this activity by the city.

In August of 2012, Buffa's allegedly presented the city with documentation including emails, letters, and advertisements with the goal of proving that the restaurant had been presenting live entertainment for the prior two years. The petition argues that the law required Buffa's to prove not two, but 10 years of live entertainment activity because of Buffa's location within a New Orleans Historic Landmarks Commission recognized historic district.

Because the City of New Orleans granted Buffa's request for a mayoralty permit incorrectly on the basis of two years' documentation, the governing body is included as a defendant in the petition.

In response to this aspect of the suit, The City of New Orleans issued a memorandum in opposition to the plaintiff's petition in the Civil District Court on July 21, stating that Esplanade failed to appeal to the Board of Zoning Adjustments within the allotted 45 days of the city's decision. Buffa's was issued a mayoralty permit on Sept. 19, and Esplanade's petition was filed on June 23.

The petitioner is requesting that following a trial to establish the facts, a permanent injunction be issued to enjoining defendants Royal Franklin LLC, Royal Franklin Bar LLC and 2601 Royal Street Bar LLC (also known as Mimi’s in the Marigny) from violating the law and creating a nuisance.

The defendant is accused of negatively impacting the property value of 1011 Esplanade Avenue, in addition to causing Esplanade's principals' inconvenience, mental distress, pain and suffering and loss of use of the property.

Esplanade is seeking an unknown amount in damages for loss of enjoyment of property, diminution of property value, anxiety, emotional distress, physical pain and suffering, court costs, attorney fees and legal interest.

The plaintiff is also seeking a declaratory judgment stating that the defendants do not have the right to present live or amplified music and entertainment at 1001 Esplanade Avenue due to current zoning law. Esplanade is asking that the City of New Orleans rescind any and all licenses, permits, or documents claiming otherwise.

On July 18, 2014, KS Ventures issued a memorandum in opposition to 1011 Esplanade Avenue, Inc.'s petition for damages and declaratory and injunctive relief.

The defense’s memorandum claims that live music has been performed at Buffa's Bar for many years, and that the restaurant has cultural significance within the city of New Orleans.

KS Ventures argues that the plaintiff’s petition is inadequate because it provides no specific dates citing allegedly loud noises, indicates no specific persons complaining of loud noises, and there are no specific measurements of allegedly loud noises.

The defense further asserts that Buffa's and 1011 Esplanade's proximity to New Orleans' Vieux Carre bears significance, as the area is historically a mixed-use neighborhood.

KS Ventures cites Thornburg vs. McMillin in which the court found that noise is subject to an action for injunction "when the noise is excessive, is unreasonable in degree and of such character as to produce actual physical discomfort or annoyance to a person of ordinary sensibilities.”

Pursuant to the aforementioned case, the defense also noted that the "character of the locality" must be taken into account when determining whether noise constitutes a nuisance.

The memorandum states that Esplanade failed to submit any affidavits in support of application for preliminary injunction. KS Ventures asserts that Esplanade’s allegations are therefore inadequate and fail to establish that sounds emitted from Buffa's are in fact "loud.” The defense argues that the petition falls short of proving whether actual harm has come to the corporation and whether a reasonable person who chooses to live in New Orleans would actually suffer from sounds coming from Buffa's.

Chuck Rogers, general manager of Buffa’s Restaurant and Bar, claims to have taken noise readings on May 17, a typical amplified band night. The readings were reportedly between the 54-92 decibel range, which is allegedly within the limits set by City Code Section 66-202.

On July 25, Justin B. Schmidt, notary public and representative for the plaintiff, swore that he took sound measurements on May 14 at 12:32 a.m. for approximately 10 minutes while standing at the property line of Buffa's and 1415 Burgundy Street. Schmidt claims that the readings fell within the 61-65 decibel range.

Schmidt cited Section 66-202 of City Code, which states that the permitted sound level at that time of day is an average 55 dB, with a maximum of 60 dB.

On July 30 KS Ventures filed a motion to exclude Schmidt's testimony, claiming that his competence to properly collect sound measurements had to be established by a trial judge. The defense alleged that passing traffic and other ambient noises could have compromised data taken at 1415 Burgundy.

KS Ventures claims that it has never been visited by City enforcement agents as a result of a complaint by Torres about noise, which KS states is unique among many other local venues that present live entertainment. The defense goes on to cite five testimonies claiming that music cannot be heard outside of the restaurant’s premises.

On July 29, KS Ventures, Inc. filed seven affidavits in the Orleans Parish Civil District Court in opposition to Esplanade's suit.

Rogers testified that Buffa's usually books solo performers late at night and that these were generally piano players and acoustic guitar players.

The manager went on to assert that he was in the habit of notifying the plaintiff, Sidney Torres IV, when a performer might be playing loud music after 10 p.m. Rogers alleges that Torres informed him he appreciated being informed via email when acts were expected to be louder than usual.

Rogers provided copies of email correspondence he had with Torres regarding upcoming entertainment at Buffa's. The emails were dated July 19 and 20, 2012.

Rogers went on to claim that he received a letter from Torres' lawyer, Justin Schmidt, stating that decibel readings had been taken and recorded at Buffa's in the early hours of May 4, showing that noise coming from the restaurant exceeded acceptable levels.

The performer at Buffa's on May 3 at 11 p.m. was a solo piano player, says the affidavit. Furthermore, Rogers claims that the sound level readings taken by Schmidt were not taken from Torres' property, but from 1415 Burgundy Street where a party was allegedly taking place.

Rogers stated that Torres' first complaint about noise occurred on May 4, 2014. In response to Schmidt's advisory letter, Buffa's has reportedly repositioned their speakers, redesigned their stage, added insulation below their stage, and incorporated sound mitigation into their bathroom remodeling plans in an effort to reduce the sound levels emanating from the restaurant.

Buffa's management claims that it has informed all performers of volume considerations. All musicians performing after 11 p.m. have been asked to do so without amplification, and to conclude entertainment by 2 a.m., court documents say.

Rogers provided copies of emails sent on May 17 and May 29 requesting access to Torres' property at 1011 Esplanade Avenue. Rogers intended to hire a sound engineer to take decibel readings in order to determine whether additional measures needed to be taken at Buffa's to prevent excessive noise. Buffa's management states that it is willing to install a decibel control system to effectively manage sound levels during performances.

Rogers asserts that in order to set appropriate sound limits inside the bar, readings must be taken both on Torres' property and inside the building that Buffa's occupies. The affidavit states that Buffa's outer wall goes up to the property line of 1011 Esplanade Avenue. Rogers claims that Torres has not facilitated the collection of readings from his property.

A previous Buffa's owner and manager, Jeff Underwood, also testified on the defense's behalf. He stated that he ran the restaurant from June 2007 until Nov. 30, 2010. Underwood claims that live entertainment was presented every week at 1001 Esplanade Avenue during his time managing the bar.

Underwood asserts that he himself was a performer at Buffa's, both as a solo opera singer and in a four piece band as a sousaphone player.

The former manager further stated that he regularly scheduled DJs, karaoke nights, private parties with live entertainment, and in August 2008, Sunday jazz brunches with "Some Like It Hot!"

Three performing musicians and two patrons also provided testimony pledging support for Buffa's live music and entertainment scene. One musician, Nita Hemeter, stated that she has played with “Some Like It Hot!” at Buffa's every Sunday since 2008.

The defense claims that employees, musicians, patrons and current owners will suffer irreparable injury if a preliminary injunction is issued.

According to the memorandum, Buffa’s Restaurant and Bar has significant cultural import within the neighborhood. Multiple affidavits given by Marigny residents have been submitted by the defense to support this claim.

As of July 31, the plaintiff and the defendants reached a compromise outside of court limiting the presentation of live music at Buffa’s. A 60-day trial period began Aug. 4.
1011 Esplanade Avenue, Inc. is represented by Justin B. Schmidt of Adams and Reese LLP.

KS Ventures is represented by Thomas W. Milliner of Anzelmo, Milliner & Burke LLC.
The case has been assigned to District M Judge Paulette R. Irons.

Case no. 2014-06183.

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