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Except for some sweat-inducing minutes after lunch when I was still trying to write a blog item and stuff a bland Starbucks sandwich down my gullet, I heard every word of the Steptoe & Johnson vs. Rogue States trial last week. I’m no judge and have no grasp of the laws that pertain to private nuisance cases, but I do have my own thoughts about how things went down in D.C. Superior Court Judge John M. Mott‘s courtroom.

After listening to all that sworn testimony, I have come to believe the following:

  • Steptoe employees do have a stench problem in their building, and despite all the jokes that these pampered lawyers are just pussies, I don’t think anyone would want to work in a space that made you feel like covering yourself in barbecue sauce.
  • Moby Dick House of Kabob and the Steptoe cafeteria are not responsible for the smell. It doesn’t make sense to blame these entities given they’ve operated for years without apparent incident.
  • Rogue States owner Raynold Mendizabal has done everything in his power to try to fix the problem. Mendizabal would like nothing more than to vent his grill exhaust to the roof, a solution that’s apparently acceptable to Steptoe.
  • Mendizabal’s landlord, TRT, will not allow a vent to the roof, citing a host of reasons (like it’s not the landlord’s responsibility to fix tenant problems), all of which sound like obfuscating horse-hockey to me. I get the distinct impression that TRT will not shed a tear if it has to evict Rogue States over this nuisance issue.

If the legal definition of a nuisance is a “substantial and unreasonable interference” with the enjoyment of one’s property, then I have to conclude, based on the evidence at the trial, that Rogue States is a nuisance. For reasons that nobody can fully explain, the exhaust from Rogue’s grill, despite an expensive scrubber system installed in April, would appear to continue toreach the nostrils of those beleaguered barristers next door.

Personally, I think the culprit is, in part, architectural: Rogue States’ vent is buried deep in the low-level, one-story canyon that separates the two taller buildings on Connecticut Avenue. The plaintiffs presented evidence that such canyons tend to trap vented fumes, which then could be sucked into Steptoe’s air-intake vents.

In other words, the fault lies less with Rogue States, then with the structural design of the buildings and the placement of the burger joint’s vent.

The solution would seem obvious: Vent the goddamn exhaust to the roof.  But TRT won’t do that, washing its hands of any responsibility to a tenant who has faithfully paid thousands of dollars in rent and bent over backwards to be a good neighbor in this trying situation. The cliche “no good deed goes unpunished” keeps running through my head whenever I think about Rogue States and its unenviable position.

Despite TRT’s protestations to the contrary, I believe Judge Mott must order a remedy in the case. He must order that TRT and Rogue States vent the exhaust to the roof. Without such an order, I don’t believe Mott would be fulfilling his responsibility to weigh the damage done to the defendant vs. the benefit gained by the plaintiff. If Rogue is deemed a nuisance, it would essentially receive the worst punishment possible—a death sentence. The burger joint would be evicted.

Despite siding with Steptoe, I don’t think the law firm is wholly blameless in this StenchGate drama. One of the lowest points in the bench trial came when plaintiffs’ attorney Deborah Baum grilled (sorry) Mendizabal on the stand about the new lease he signed on 14th Street NW to open another Rogue States. Her implication was clear: If you’re forced to close this location, you’ll always have another one for you and your employees.

The arrogance of this argument was dumbfounding. It was a willful display of ignorance about how much time and money and passion independent restaurateurs put into their businesses. Baum’s argument was like saying, “We can kill your first-born because you have another on the way.”

Then there was Steptoe’s wielding of power. At one point, Baum pleaded to Judge Mott that the law firm was being wrongfully maligned in this case. She argued that Steptoe wasn’t playing the role of Goliath, trying to run roughshod over poor little David. It was just trying to protect its workplace, like any other employer.

But how many employers can call up the mayor’s office and get immediate action? How many can call up DCRA and get any action at all? How many think of pulling a business’ certificate of occupancy to look for clues for potential violations?  How many have a team of well-trained litigators to help build their case?

Steptoe is a stomping, intimidating 800-pound gorilla and its pleadings to the contrary only seem disingenuous. But you know what? Even 800-pound gorillas have rights.

Judge John M. Mott is supposed to rule today on the case.

Photo by Darrow Montgomery