Vaccine-card mandate set to end March 11; legal settlement has conditions

Parties on both sides of a legal dispute over a proof-of-vaccination public health order for restaurants and bars were pleased with their amicable settlement after a mid-March date was set to lift the restriction.

Dr. Allison Berry, health officer for Clallam and Jefferson counties, imposed the mandate Sept. 2. It required those establishments where people must remove their masks to eat and drink, to demand that indoor patrons prove they have been vaccinated against COVID-19.

The restriction will be lifted on or before March 11 under certain conditions, according to a settlement agreement finalized Friday afternoon, Feb. 4, between the six Clallam County restaurant owners on one side and the county and Berry on the other.

“I think it speaks to the character of the people involved here on both sides that they were willing to try to find some common ground,” Deputy Prosecuting Bert Boughton said.

“They were willing to compromise in a way that makes sense, not just for me, myself and I.”

Michael McQuay owns Kokopelli Grill/Coyote BBQ Pub in Port Angeles, one of the parties in the action against Berry and the county.

“We got her to agree on a date certain. That’s what happened, and we feel good about it,” he said.

“It’s actually better than we anticipated, and the settlement is right along the lines of what we wanted.”

The lifting of the order depends upon case rates and intensive care unit levels but Berry expects that omicron will have receded enough by March 11 to ensure that lifting the mandate is safe.

“I trust the modeling that we’ll be at a safe rate by then,” she said Friday in a text message. “And we included a safety precaution about hospital capacity in the very unlikely event that the modeling doesn’t hold true.”

Berry said the terms of the four-page pact that will provide a template for terminating the order for Jefferson County restaurants and bars, too.

“We anticipate that will happen at a similar time frame if not sooner than Clallam,” Berry said.

A complaint for injunctive relief against the mandate was filed Nov. 24 in Clallam County Superior Court by the operators of The Oasis Bar and Grill, Blondie’s Plate, Sunshine Cafe, and Jose’s Famous Salsa and Salsa House Restaurant, all in Sequim; Blackberry Cafe in Joyce, and Kokopelli Grill/Coyote BBQ Pub.

They said the health order violates their “economic liberty,” has cost them revenue and customers, and is arbitrary by applying solely to restaurants and bars.

Sequim attorney William Payne, representing the business owners, said last week they also felt it was unfair the mandate applied to Clallam and not most other counties.

“There was a lot of angst there,” he said. “Why us?”

A court hearing scheduled for Feb. 2 was stricken from the calendar after the parties reached an agreement in principle but had yet to put it in writing.

Berry will remove the health order for Clallam County on March 11 if the existing countywide intensive care unit population is not at more than 90 percent capacity, according to the agreement.

It will be terminated earlier than March 11 if the coronavirus case rate is below 200 per 100,000 population two weeks before March 11 and if the ICU population is not greater than 90 percent.

The COVID-19 case rate stood at eight times the 200 target case rate Friday — 1,601 per 100,000 population.

Berry said the ICU rate was more than 90 percent to 100 percent occupied during most of the recent surge of COVID-19 cases.

“Under normal circumstances, we are never above 60 percent ICU beds occupied,” she said.

She said using a case-rate goal such as 200 cases per 100,000 residents had been confusing to restaurant owners and left them with the concern that the threshold would never be met and the order would never end.

“That was never our intention,” Berry said, “and we’re happy to provide more clarity on an end date for businesses so they can plan.

“By interpreting the modeling data, we can expect to hit that safe threshold my mid-March, and so we feel that lifting the order on March 11 will be safe.”

She said after that date, restaurant and bar owners can continue to require proof of vaccination but don’t have to. Staff and customers must continue to wear masks when not eating, as required by state law.

“It’s signed. It’s done. I feel good about it,” McQuay said.

“It’s gone on March 11 and sooner if we get below 200 per 100,000.

“We came to an agreement to avoid legal fees and interrogatories and the whole nine yards.”

Boughton said that Payne signed the pact on behalf of the entrepreneurs and delivered it to him early Friday afternoon.

The injunction request will be withdrawn within five days of the mandate being lifted, according to the agreement, Boughton said.

Each side will be responsible for its own legal fees.

“The parties basically have agreed to stop active litigation,” Boughton said.

“Out of all the disputants in the state, Clallam is probably one, if not the only one, that has reached an actual amicable, or at least a cessation of hostilities and a cessation of litigation where the parties have worked together.”

The direction of the case took a different course following a face-to-face meeting the week of Jan. 23 at the county courthouse between the parties in the case.

“Everything changed after that,” McQuay said.

“It was a good meeting. I felt good about it. We all felt good about it, and the end result is we have a settlement.”

The first complete draft of the agreement was worked out Tuesday or Wednesday of last week, Boughton said.

“I feel proud of the way we were able to work through this the way we did in the current climate, the way thing are and the complete, at least the appearance in society of the breakdown of any rational, you know, the ability to have a rational, reasonable discussion between people with opposing viewpoints,” he said.

Payne said the restaurant owners wanted to pursue a settlement before proceeding with more litigation.

“They just want to run their businesses and do their jobs, and that’s kind of it,” he said.

The Feb. 2 had been scheduled for Kitsap County Superior Court after Clallam County’s three Superior Court judges recused themselves from ruling on the injunction, saying they consulted with Berry on COVID-19 health protocols for court proceedings. All filings continue in Clallam County Superior Court.