PORTSMOUTH, New Hampshire — The owners of the Gas Light Co. restaurant are asking a judge to resolve a lawsuit in their favor — related to a city order that they enclose their outdoor decks — and to pay their lawyer’s fees for taking the case to court.
Attorney Jonathan Flagg represents the Gas Light and said he’s asked for attorney’s fees because “even though the city has known all along they could not force enclosure of outdoor decks — they knew that because they just passed an ordinance allowing that — they nevertheless pushed this case forward in the ultimate combination of arrogance and bullheadedness.”
“Portsmouth is the only jurisdiction in the state of New Hampshire that is seeking to prohibit this common practice (outdoor decks), without epidemiological evidence to support its claim,” he said. “The 2009 FDA Food Code (the city just adopted) does not require the enclosure of outdoor beverage bars. New Hampshire law does not require the enclosure of outdoor beverage bars. This is being proposed as a new section to the Portsmouth health code because it does not currently exist as a requirement under Portsmouth, state or federal law.”
The Gas Light filed a lawsuit against the city in January and the deck-enclosure mandate was put on hold for the summer season. The City Council in November adopted the 2009 federal food code with its own subsection stating, “Permanently located outdoor beverage bars shall be fully enclosed during non-operating hours with a sturdy, permanent structure capable of withstanding wind, weather, be rodent, bird, insect-proof, and seal out any and all intentional and unintentional sources of contamination and adulteration. If adequate protection can be provided by other effective means a variance may be issued …”
Flagg said the new adaptation and subsection are proof that the city had no authority to order enclosures of outdoor bars. He added that none of the other 14 self-regulating municipalities in the state require enclosing outdoor bars and it “conflicts with city laws.”
“Current Portsmouth zoning laws do not allow single-story structures and there is no guarantee that a variance would be allowed for a single-story structure,” he said. “The cost of enclosing outdoor beverage bars would be significant and possibly prohibitive if the structure is built to International Building Code, rather than seasonal awnings.”
City Attorney Robert Sullivan previously said it’s the health officer who is requiring the deck bars to be covered so “instrumentalities used to provide food” are not exposed to the elements, including rodents. Sullivan said the lawsuit means a judge will decide “the extent to which the health officer has the authority to provide these protections.”
Sullivan said, “Our concern is public health.”
To address that, the city attorney said, there must be “some form of enclosure” to ensure “no instrumentalities of food service are left there” exposed to the environment.
Flagg argues in his lawsuit that in the 26 years the Gas Light deck deck has been uncovered, the health inspector has not issued a single violation and has consistently issued annual health inspection permits for them to operate uncovered.
Sullivan said the city’s health concerns pertain to exposed food-service implements and related possible health hazards. He said rodents could access ice machines through drainage hoses and any food or drink-service implements could be exposed to “insects and vermin.” Because of that, he said, the city is requiring “some sort of enclosure” over the outdoor bars.
“We have addressed every one of those” concerns, Flagg countered, while saying the city authorized the Gas Light Co. to open the deck bars for the 2016 season, after demanding the enclosure. He said beer taps are sprayed with alcohol in the mornings and evenings and ice containers have inserts that are emptied and brought inside nightly.
In the lawsuit, Flagg tells the court the Sorli family expanded the outside deck in 1998 with planning, Historic District Commission and health department approvals. In 2004, according to the lawsuit, an additional bar was added to the outside deck area and again, all of the city entities gave approvals.
Flagg alleges the city has “overstepped its regulatory authority,” violated the Sorlis’ constitutional rights and should be stopped by the court from “demanding compliance with non-existent Portsmouth codes.”
Sullivan said the city will file its answer to Flagg’s motion on Wednesday.