Fix sought for proof-of-vaccination lawsuit

Talks in works for Berry and plaintiffs

PORT ANGELES — A court hearing to rescind a mandate for proof of vaccination against COVID-19 was postponed until Jan. 7 while lawyers lay groundwork for discussing a resolution that could involve a face-to-face meeting between opposing parties.

Dr. Allison Berry, health officer for Clallam and Jefferson counties, issued a health order on Sept. 2 that requires customers of restaurants and bars to provide proof of vaccination against COVID-19.

The order, which took effect Sept. 4, was challenged in action filed in Clallam County Superior Court by six eateries in Sequim, Port Angeles and Joyce.

Their Nov. 24 injunction request against Berry and Clallam County was scheduled to be heard Friday in Kitsap County Superior Court after Clallam County’s three judges recused themselves. It was rescheduled to Jan. 7, a court spokesperson said Friday.

The plaintiffs are The Oasis Bar and Grill (doing business as Diamond Point Dreams), Kokopelli Grill and Coyote BBQ Pub in Port Angeles; Blondie’s Plate restaurant and Jose’s Famous Salsa and Salsa House Restaurant, both in Sequim; and Blackberry Cafe in Joyce.

They contend the restriction is unconstitutional by singling them out and discriminating against them, that it has hurt their ability to make a living and that it compromises their “economic liberty,” a fundamental right.

Unvaccinated individuals are allowed to dine and drink outdoors.

Not all restaurants are following the mandate.

Deputy Prosecuting Attorney Bert Boughton, representing Berry and Clallam County, and Sequim lawyer William Payne, representing the plaintiffs, said Friday they are talking about determining a time and place to discuss any agreement that might, within the next three weeks, avoid further legal action.

“We have talked, and we are just trying to work it out in the best interest of our clients,” Payne said.

“I always try to work to resolve cases, and that’s what we are always going to do in every instance. It is in everyone’s best interest to resolve this case.”

Boughton said he is striving to develop a format for Berry to meet with the restaurant owners to hear their concerns.

He said his understanding was the plaintiffs “had not received the communication they had hoped for ” with Berry regarding the mandate and hoped a dialogue could be established before the lawsuit proceeds further.

“It’s far better for parties to sit down and see whether they can resolve issues between themselves without spending time and money and having a decision made by someone in a black robe,” Boughton said.

Berry is willing to talk directly with the plaintiffs, he said.

Kokopelli owner Michael McQuay and Oasis owner Dale Dunning told Peninsula Daily News on Dec. 14 in separate interviews that they had been unable reach Berry to talk with her, which she disputed.

They said the mandate was imposed with little warning to restaurant and bar owners.

Berry said she had to act quickly due to the impending Labor Day holiday and the expectation that gatherings, a breeding grounds for the respiratory virus, would result in a spike in cases.

McQuay and Dunning said they would have been more amenable to a 50-percent capacity restriction than a mandate.

They said Berry’s order — which has been copied only in King County in the state of Washington, according to officials from city and county associations — forces them to watch customers walk away from their establishments when asked for their vaccination cards and makes their employees enforce the mandate.

Berry told the PDN on Sept. 6 that reimplentmenting capacity restrictions on restaurants and bars, a measure imposed earlier in the pandemic, would be more harmful for businesses than requiring customers to be vaccinated.

She reiterated that Friday in a text message in which she said the health department is always reevaluating her health order.

“Many restaurants have reported that 50 percent capacity limitations are not economically sustainable, and are in fact more costly than any costs sustained due to the proof of vaccination requirement,” Berry said.

She also cited the recent spread of the highly contagious Omicron variant as another reason the health department is against a 50-percent-capacity rule.

“The Delta variant as well as the Omicron variant are aerosolizing so 6-foot spacing is now much less effective at reducing transmission in unmasked settings,” Berry said.

Berry told the PDN on Friday that it is likely Clallam and Jefferson counties will see their first cases of the Omicron variant in coming days.

Boughton said he told Payne that he did not know if Berry would be able to make changes that will satisfy his clients.

“I know from talking to her that she is certainly willing to consider recommendations and things they want to talk about,” Boughton said.

“It’s worth a try,” he added.

“From my perspective, it makes sense to do that before you move into litigation.”

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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected]

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