More time given for vaccine mandate challenge

Injunction hearing now Dec. 13

PORT ANGELES — A court hearing on an injunction request by six eatery owners’ to rescind Dr. Allison Berry’s proof-of-COVID-19-vaccination mandate was delayed until next week so Clallam County can submit a response.

“That matter has been stricken from the calendar today and renoted as I understand it to Dec. 13 at 9 a.m., so we will not be hearing the matter of Diamond Point Dreams et al. [and others] vs. Clallam County, et al,” Superior Court Judge Simon Barnhart announced at the start of Friday afternoon’s civil calendar.

“Thank you for your interest in that case.”

The Sept. 2 mandate by Berry, the health officer for Clallam and Jefferson counties, went into effect Sept. 4, restricting indoor dining and imbibing at establishments in both counties. Outdoor dining and drinking by unvaccinated individuals is permitted.

Sequim lawyer William Payne filed the complaint for injunctive relief and declaratory judgment Nov. 24 against Clallam County and Berry on behalf of the plaintiffs.

Those challenging the mandate on constitutional grounds are The Oasis Bar and Grill (doing business as Diamond Point Dreams); and other companies doing business as Blondie’s Plate restaurant and Jose’s Famous Salsa and Salsa House Restaurant, all in Sequim; Kokopelli Grill/Coyote BBQ Pub in Port Angeles and Blackberry Cafe, Joyce.

The business owners claim the edict violates their “economic liberty” and has cost them revenue and customers.

Jefferson County Prosecuting Attorney James Kennedy said Thursday a broader but similar complaint take issue with the mandate there and is being processed as a claim for damages.

Details were unavailable late Friday afternoon.

The Clallam County lawsuit alleges the health order is arbitrary and capricious, pointing to its application solely to restaurants and bars, not other gathering places such as entertainment venues, hotels and motels with similar facilities, and to gyms and fitness centers.

The Olympic Peninsula YMCA announced Friday that as of Jan. 1, it will require all members and program participants who are 12 and older to show proof of vaccination or a negative result from a PCR (polymerase chain reaction) test three days before visiting a YMCA facility.

Clallam County Prosecuting Attorney Mark Nichols said Friday his office received a copy of the pleading shortly before the Thanksgiving holiday weekend and conferred Monday with Payne, who agreed to give the county more time to answer the complaint.

Payne could not be reached for comment Friday.

Clallam County commissioners met at 1 p.m. Friday in executive session to discuss the lawsuit.

Board Chair Mark Ozias said he was not aware of the filing until a reporter called him Thursday to ask if the executive session would be followed by board action. None was taken.

“I’ll let the legal proceedings unfold before weighing in,” Ozias said Friday.

The injunction request is the second challenge to the health order, but the first in a court of law.

The mandate was upheld Oct. 13 by the state Board of Health following a complaint alleging Berry overreached her authority by not having the county Board of Health vote on the action.

Under state law, county health officers can “take such action as is necessary to maintain health and sanitation supervision over the territory within his or her jurisdiction.”

Under state administrative code provisions for establishing quarantine and isolation measures, a health officer can invoke “the powers of police officers, sheriffs, constables” to “immediately” enforce orders “to effectuate the purposes of this section.”

Case law supports the use of police powers to further the preservation of public health, according to the Sept. 2 order, and the state administrative code says health officer can “when necessary” institute disease control measures “he or she deems necessary.”

The Nov. 24 complaint says the mandate has caused “irreparable damage and economic harm” to the restaurants.

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

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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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