Lawsuit filed against vaccine proof order

Clallam County and Dr. Allison Berry challenged

PORT ANGELES — Owners of six restaurants have filed an injunction request challenging Clallam County and Dr. Allison Berry over Berry’s proof-of-COVID-vaccination mandate for bars and restaurants.

The entrepreneurs’ motion that Clallam County Superior Court Judge Simon Barnhart rescind the order issued Sept. 2 by the health officer for Clallam and Jefferson counties will be heard at 1:30 p.m. today (Zoom meeting ID 968-5772-2818, passcode 12345).

A complaint also challenges the mandate in Jefferson County as part of a larger scale court action against Berry, Prosecuting Attorney James Kennedy said Thursday.

“The county was presented with a complaint yesterday and it is being processed as a claim for damages,” he said in an email.

It had not been filed with Jefferson County Superior Court as of mid-afternoon Thursday, he said.

The business owners in Sequim, Port Angeles and Joyce claim the edict violates their liberty and has cost them revenue and customers.

The Nov. 24 complaint for injunctive relief and declaratory judgment in Clallam County was filed by Diamond Point Dreams, dba The Oasis Bar and Grill; Blondie’s Plate LLC, dba Blondie’s Plate restaurant, and Jose’s Famous Salsa LLC, dba Jose’s Famous Salsa and Salsa House Restaurant, all in Sequim; Dakota Ventures LLC, dba Kokopelli Grill/Coyote BBQ Pub, Port Angeles; and Double O Catering, dba Blackberry Cafe, Joyce.

They are represented by Sequim attorney William Payne.

Clallam County commissioners have scheduled a 1 p.m. executive session today with the prosecuting attorney’s office to discuss the complaint.

Board Chair Mark Ozias said Thursday they are not expected to take action after the closed-door session, scheduled to begin 30 minutes before the court hearing.

“I’m anxious for the update,” Ozias said.

Berry’s requirement that indoor customers of bars and restaurants in Clallam County must show proof of vaccination became effective Sept. 4. It was the first order of its kind in Washington state.

King County has a similar mandate.

Information on other cities and counties with similar mandates was unavailable Thursday from the state’s two city and county associations. The state Department of Health does not track that data, a spokesperson said.

Clallam’s edict requires restaurant and bar owners to enforce the requirement or face permit suspension and action against them by the state Department of Labor.

The state Board of Health upheld Berry’s mandate Oct. 13. It was challenged as an overreach of authority in a complaint claiming the county Board of Health should have voted on the order.

The motion that Barnhart will hear this afternoon takes a broader tack, saying it violates the business owners’ fundamental right and the rights of restaurants to equal protection of the law guaranteed by the Constitution.

“The fundamental right in this case is the freedom to inherit, purchase, lease, sell, hold, and convey real and personal property — what is essentially economic liberty,” Payne says in the complaint.

“The right to pursue a lawful calling has long been recognized as a fundamental right.”

The complaint says Berry’s mandate discriminates between certain types of businesses and between individuals who are vaccinated and unvaccinated “without regard for the reason a person may be unvaccinated.”

It cites the lack of provision for those who are not inoculated due to religious beliefs or medical disability.

“There is no option for a patron to provide a negative COVID-19 test or to wear a mask in lieu of vaccination,” it says.

“There is also no accommodation for those who cannot get the vaccine or those individuals that have already had COVID-19 and have, according to generally accepted science, developed some immunity to COVID-19.”

People infected with COVID-19 are more than twice as likely to be reinfected, according to the Centers for Disease Control and Prevention (www.cdc.wa.gov).

The lawsuit also alleges the mandate is arbitrary and capricious because it applies only to restaurants and bars, not to entertainment establishments, gyms and fitness centers, visitors of long-term care facilities, where many outbreaks have occurred, and hotels and motels, where, as in restaurants and bars, diners remove their masks when eating and drinking.

“Indoor bars and restaurants are known to pose a high risk for COVID-19 transmission, as they encourage unmasking of large groups of people indoors,” Berry said when announcing the order.

“Our goal is to make these safer places to be and to reduce transmission in our communities, allowing our hospitals to keep functioning and our schools to open more safely this fall.”

The complaint says the mandate has caused “irreparable damage and economic harm” to the restaurants by way of lost revenue and customers, and employees who have quit over the order.

The entrepreneurs are asking that Barnhart rule Berry’s order invalid, prohibit the county from enforcing it, and award attorney fees.

Marc Abshire, Port Angeles Chamber of Commerce executive director, said Thursday he does not know if restaurants and bars have suffered financially from the order.

“My sense is that they are doing very well and their challenge is not so much the vaccine mandate implementation as it is staffing and getting enough workers to meet the hours they’d like to be open,” he said.

He said some employers were glad the mandate was imposed to protect their employees, and many have adapted by erecting canopies and taking other measures to accommodate outdoor dining for unvaccinated customers.

“We have heroic bar and restaurant owners in this town that have really been creative,” Abshire said of entrepreneurs dealing with COVID-19 over the last 18 months.

“So I think they’ve done very well. I think their biggest challenge is staffing.”

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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at pgottlieb@peninsuladailynews.com.

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