PORTSMOUTH — Almost two years after the Gas Light Co. filed suit against the city, against an order that its decks be enclosed at night, negotiations have failed and the legal dispute is going to trial, said attorney Jonathan Flagg.

Settlement talks did "not go anywhere," said Flagg, who represents the Gas Light, located at 64 Market St.

"Unfortunately, much like the Toyota of Portsmouth case, the city just doesn't get it," Flagg said Friday. "This is going to be another case that is just going to cost the taxpayers money."

The Toyota of Portsmouth case involves multiple legal victories by auto dealer James Boyle, most notably a 2017 court order that the city pay him $3.5 million for lost income related to a dispute about a city sewer line crossing his Greenleaf Avenue dealership land. Boyle also had a recent legal victory against the city's eminent domain taking of some of his land and is in negotiations to try to settle that out of court.

Flagg filed the Rockingham County Superior Court lawsuit for the Gas Light in January 2017, asking a judge to permanently prevent the city “from demanding” the restaurant's outside deck bars be enclosed as a condition of receiving a health permit. Flagg also asked the court to award the Gas Light attorney fees for bringing the case to court and prevent the city “from enforcing a non-existent code.”

The Gas Light's lawyer argues the Health Department cited a federal food code, adopted by the state in 2009, as the reason for requiring the deck bars be enclosed. But, he said, the city had not adopted the code at the time Gas Light was given the order, so it had no authority to enforce it.

The Portsmouth Herald left City Attorney Robert Sullivan a message Friday morning with Flagg's quotes and a request for Sullivan's comments. That message was not returned Friday afternoon when City Hall closes early.

Sullivan previously told the Herald it’s the health officer requiring the deck bars be covered so “instrumentalities used to provide food” are not exposed to the elements, including rodents. The Gas Light lawsuit brought a court filing from the city citing an increase in reports of sightings of live and dead rats, including a report of a rat sighting by Gas Light owner Paul Sorli, who later said he saw the rat at the nearby parking garage.

A Health Department memo noted the rat sightings are “related to restaurant trash issues,” Flagg asked for city records pertaining to rat abatement, then later noted most of the abatement for rodents was at the City Hall building.

 “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,” he previously said.

During the past two summers, while the lawsuit has been pending, the Gas Light decks were in business without any enclosures. Flagg said in the spring his client will continue to operate outdoor decks, as they have for the past 24 years, until the court case is resolved “either at trial or by agreement.”