As of 5:30 a.m. Wednesday, Rogue States, A Burger Company will have to cease operating to comply with a D.C. Superior Court judge’s verdict in the closely watched dispute between the restaurant and its neighbor, Steptoe & Johnson.
Judge John Mott’s ruling came after a three-day trial in which several Steptoe employees testified that fumes from the restaurant’s exhaust system were causing health problems, including watery eyes, headaches and nausea.
Steptoe, which was represented by Deborah Baum, a partner at Pillsbury Winthrop Shaw Pittman, has argued in court papers that because Rogue States’ exhaust vent is on the second floor it expels fumes directly into the firm’s air intake system. The firm has argued that the only way to properly fix the problem is to extend the exhaust system to the roof of Rogue States’ building, which has been estimated to cost roughly $150,000.
Rogue States owner Raynold Mendizabal, who was represented by Gary Adler of Roetzel & Andress, argued that the problem had been fixed when the restaurant installed a “scrubber” on its exhaust system and stepped up cleanings of that device after Steptoe won a preliminary injunction against the restaurant in August.
In handing down his ruling today, Mott said that despite Rogue States’ efforts, the odors and fumes have persisted and are continuing to cause “noticeable, discomforting and annoying” health problems for Steptoe’s approximately 700 employees.
“The plaintiffs have proven that there is a nuisance by a preponderance of the evidence, and based on the entirely credible testimony from employees who work in the building every day, I order the defendants to abate the nuisance. . . . As long as the current equipment is in place and does not include extending the exhaust system to the roof or some other means of fixing the problem, Rogue States must cease its grilling operations,” Mott said today.
Mott also noted in his verdict that this case “was not about anyone trying to run a small establishment out of business, nor is it about a small business that does not care about its neighbors. It’s about the nuisance that interferes with the use, comfort, and enjoyment of [Steptoe’s] place of business.”
Mott denied a verbal motion from Adler to stay the decision pending an appeal filed by Rogue States with the D.C. Court of Appeals, saying, “I see no basis to stay the decision.” Mott did allow Rogue States to have the rest of the business day, which for a restaurant that operates overnight means until 5:30 a.m. tomorrow, to inform its employees of the decision.
After Mott handed down his verdict, Adler and Mendizabel declined to comment.
In a statement, Steptoe general counsel Thomas Barba said, "Steptoe is gratified by the Court's order. From the time that the restaurant started operations in February of this year, we have sought a solution that would allow the restaurant to continue its operations without harming our employees. Unfortunately, the restaurant and its landlord were unable to agree on a solution that would safeguard the well-being of our employees. Accordingly the court had no option but to order the nuisance abated and the restaurant to turn off its grill. While we wish the defendants could find a way to survive in this location and not cause a nuisance to our employees, we are committed to the health and safety of our workforce and providing our employees with a good environment to work in."