PORTSMOUTH — "If there is any rat infestation in Portsmouth, that infestation is at City Hall," attorney Jon Flagg said in the latest court filing for a dispute over a city mandate to enclose outdoor drinking and dining decks.
In his filing with the Rockingham County Superior Court on Monday, Flagg included copies of a request he made to the city legal office for all municipal rat-extermination invoices since 2015 when, according to health inspector Kim McNamara, an increase in reports about rats began. Flagg also filed with the court copies of five invoices he received from the city in response and only one, from 2015, cites the location of rodent extermination as "city hall." The other four invoices cite no location for the extermination service.
Flagg also filed with the court Monday an email from Assistant City Attorney Jane Ferrini, who reported the city's pest control company was sold to another company so it may be difficult to obtain further details about the locations of municipal rat extermination.
Flagg represents Paul Sorli, owner of the Portsmouth Gas Light Co. restaurant, who is suing the city to challenge the deck-enclosure mandate. He argues McNamara had no authority to require outdoor decks to be enclosed, asks the court to "set the city straight on what it can and cannot do" and to pay Sorli for damages.
The city filed a Dec. 17 affidavit by McNamara with the court stating that since 2015 there have been “an increase in reports of sightings of live and dead rats and an increased number and size of burrows.” A Health Department memo notes the rat sightings were “related to restaurant trash issues.” The city has cited rodents as a reason to mandate outdoor deck enclosures, in an effort to prevent rat-borne disease.
In a Dec. 26 memo, McNamara reported there were 53 reports about rats filed with the health office between 2015 through 2017. Four of the reports came from business owners, three of them downtown, 35 reports were made by residents "across the city," two were made by visitors and eight were received "from other city departments."
The Police Department since 2014 has reported rats in its facility inside the City Hall building. Last month police business manager Karen Senecal reported to the Police Commission that there was an "uptick" in rat sightings and an exterminator was called to respond.
The city last month filed with the Superior Court a memo by McNamara, based on a July 24, 2015 complaint by Sorli about rats. The city memo states Sorli reported seeing two rats leave his restaurant patio and go toward the High-Hanover parking garage. But in an affidavit filed with the court Monday, Sorli states, "I never saw rats on my property. I saw them by the parking garage and did not want them on my property, so I contacted the health office."
Ferrini in a Dec. 21 memo states the public works director recalls Sorli's 2015 complaint, that a pest control company evaluated the parking garage and found no rat burrows, but reported "rats were using the garage as a thoroughfare in order to gain access to food."
In his Monday court filing, Flagg tells the court "the city has cooked up a health emergency" in its defense of the deck-enclosure mandate. Flagg reports the Gas Light opened its deck with city approvals 28 years ago and since then tens of thousands of patrons have dined there "without a single report of anyone getting sick."
"Despite these undisputed facts, the health officer has just discovered a health emergency that requires the enclosure of the outdoor bars by single story buildings," Flagg's court filing states. "The only empirical evidence is that there are rats at City Hall and perhaps City Hall should be shut down, not a business with a perfect 28-year record."
An affidavit by McNamara last month states all other outdoor decks in the city - including Harpoon Willy’s, Oar House, Lazy Jack’s and Poco’s Bow Street Cantina - have complied by installing deck enclosures. She said new food, building and health codes, which include the deck-enclosure mandate, were adopted by the City Council on Dec. 4.
McNamara’s statement reports that the Gas Light’s outdoor bar area was permitted to open without an off-hours enclosure during the 2016 summer to help the business recover from fire-related losses. She said the second reason was that there was an understanding that there would be an enclosure by the 2017 summer season. The Gas Light's lawsuit followed and put the mandate on hold.
The city contends it has the authority to require enclosures for outdoor bars and has not acted in bad faith, so the Gas Light’s motion for the court to find in its favor should be denied. A court hearing for the Gas Light's motion for summary judgement is scheduled for Jan. 22.