On July 22, the parties were ordered by a D.C. Superior Court judge to try to work out an agreement that resolved the dispute. If that didn’t happen, Judge John Mott ordered them to submit proposed resolutions by yesterday. The proposals are in, and Mott has plenty to work with. Three separate proposals were filed.
Steptoe and its building owner, Boston Properties, both represented by Pillsbury Winthrop Shaw Pittman’s Deborah Baum, say Rogue States, A Burger Grilling Company, should be required to re-route its exhaust system to the roof of its 10-story building within 30 days or the restaurant should be enjoined from emitting smoke and food odors.
Steptoe contends in court records that fumes from the restaurant are being sucked into the ventilation system of its 1330 Connecticut Ave. N.W. office. As a result, the firm says in court pleadings that its employees have suffered such health problems as “headaches, nausea, dizziness, watery and itchy eyes, drowsiness and distraction.”
Rogue States and its building owner, TRT 1300 Connecticut Avenue Owner LLC, are less unified in their proposals to Judge John Mott.
Rogue States, represented by Gary Adler, managing partner of Roetzel & Andress’ Washington office, lays out a series of options for Mott to choose from. First, not surprisingly, is not to issue an injunction at all. Adler’s second option is to have whatever injunctive order Mott issues not require that the restaurant be closed pending trial.
Adler’s third option is a little more nuanced. He argues that because TRT allegedly insisted on installing an exhaust “scrubber,” which evidently didn’t work, as opposed to re-routing the exhaust system to the roof, TRT should be on the hook for paying to fix the problem. Adler writes in the proposal that the building owner should have to pay to install either an advanced oxidization cell, which is a non-intrusive air purifier, or to have the exhaust re-routed to the roof.
“Rogue States would not be in the position it is in now if TRT had exercised its reasonable judgment up to this point. It seized control and took responsibility for the proposed remedy it insisted upon,” Adler writes.
TRT, which is represented by Paul Kiernan of Holland & Knight, also offers several proposals to fix the alleged problem, including ordering Rogue States to cease operating. The second option Kiernan puts forward is to allow TRT to install an advanced oxidization cell at its own expense until the trial is included.
Kiernan argues that venting to the roof of Rogue States’ building is “not feasible.” Regardless, Kiernan argues that whatever the court’s injunctive order says, Steptoe should have to post a bond that would cover Rogue States’ and its building owner’s damages.
Mott has set a hearing to discuss the proposals for Aug. 24.