Lawsuit against mandate delayed

Proof of vaccine may be lifted by March

PORT ANGELES — If COVID-19 transmission rates driven by the omicron variant continue downward, the lawsuit against Dr. Allison Berry and Clallam County challenging her vaccination mandate may become a moot point unless it’s ruled on before then.

Berry, health officer for Clallam and Jefferson counties, said Tuesday her indoor-dining proof-of-vaccination requirement could be rescinded by mid-March by virtue of fewer coronavirus cases — instead of the preliminary injunction being sought by the six Clallam County restaurant owners who are attempting to accomplish that goal.

A hearing on their preliminary injunction request, scheduled Monday for a Kitsap County Superior Court hearing after Clallam County’s three judges recused themselves, was rescheduled for 3 p.m. Feb. 2.

Filed Nov. 24, it was set for a hearing Jan. 7, then was scheduled for Monday due to the partial shutdown Jan. 2 of the courthouse due to a COVID-19 outbreak.

By the next court hearing date, Berry may be within about six weeks of removing what the plaintiffs say is the hurdle of showing proof-of-vaccination at eateries and bars in Clallam and Jefferson counties.

Outdoor dining is allowed for the unvaccinated.

“I do think it will go away by then,” Berry said.

“By looking at our modeling, it looks like we should be at a low enough transmission rate in our community to revoke the vaccine mandate by mid-March, so it’s on the horizon,” Berry said.

Sequim attorney William Payne, representing the restaurants, could not be reached for comment on the status of the lawsuit.

The plaintiffs are the operators of The Oasis Bar and Grill, Blondie’s Plate, and Jose’s Famous Salsa and Salsa House Restaurant, all in Sequim; Kokopelli Grill/Coyote BBQ Pub in Port Angeles and Blackberry Cafe in Joyce.

Payne on Jan. 19 filed 142 pages of responses to the county’s and Berry’s answers to the complaint.

They included affidavits signed by Dale Dunning, owner of The Oasis; Jose and Angie Garcia, owners of Jose’s Famous Salsa; Michael McQuay, owner of Kokopelli Grill/Coyote BBQ Pub; Roxanne Olsen, owner of Blackberry Cafe; former Jamestown Clinic family practice Dr. Timothy Guthrie; Stephen Schumacher, a mathematician; and Jim Scarantina, a retired attorney.

Bert Boughton, representing Clallam County and Berry, said Tuesday he, Berry, Payne and four of the owners met Jan. 20 to discuss the lawsuit.

“We are actively working toward a resolution,” Boughton said.

In his relevant facts contained in his brief filed last week, Payne cites Pfizer CEO Albert Bourla’s statement that the vaccine is not effective against the omicron variant, listing the self-described conservative news website townhall.com as his source.

“Two doses of the vaccine offers very limited protection, if any,” Bourla is quoted as saying. “Three doses with a booster offer reasonable protection against hospitalization and deaths.”

Bourla, asked last week if booster shots will have to be administered every four or five months, said he hopes a vaccine will be administered annually, according to Reuters news agency (reuters.com).

Payne said Berry’s mandate is too broad and does not allow an exception for customer who recently tested negative for the coronavirus.

In her affidavit, Garcia said her revenue has decreased 25 percent since the mandates were imposed Sept. 4 and her staff has been harassed by customers numerous times while trying to enforce it, resulting in a loss of employees.

She said she and her husband are constant targets of profane phone calls and hateful social media comments.

Olsen said she has been yelled at and cursed, and has lost $7,000 since September compared with previous years.

McQuay said his gross revenue was down 37 percent from September through Dec.31, 2021, most of it in November and December, when local residents are primary customers. He said he had little time to prepare and no guidance from the county between the announcement of the mandate Sept. 2 and its imposition two days later.

On Sept. 4, a customer who was asked if he was vaccinated spit in the face of an employee who luckily was wearing a mask, McQuay said.

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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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