A Kitsap County judge will adjudicate an injunction request on Dec. 17 challenging the COVID-19 proof-of-vaccination mandate for bar and restaurant patrons after Clallam County’s Superior Court judges recused themselves from the dispute.

The prosecuting attorney’s office responded to the lawsuit last week, calling for its dismissal and a ruling that validates the Sept. 2 health order issued by Dr. Allison Berry, health officer for Clallam and Jefferson counties.

The mandate, which applies to indoor dining in both counties, is being challenged in Clallam.

The lawsuit was filed by 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 in Joyce.

Judge Simon Barnhart said at a hearing Dec. 3 that it was his understanding the hearing was scheduled for Dec. 13. He said last week he had incomplete information on Dec. 3, when the hearing date was extended to give time for the prosecuting attorney’s office to file the response.

Barnhart and judges Lauren Erickson and Brent Basden signed an order filed Dec. 7 that they could not rule on the case in light of the state Code of Judicial Conduct, which orders judges to be impartial and avoid the appearance of impropriety.

“Specifically, the Clallam County Superior Court regularly consults with Dr. Allison Berry regarding COVID-19 safeguards that are utilized in Clallam County Superior Court.”

The hearing will be accessible via Zoom at kitsapgov.com. Clallam County Superior Court Administrator Lacey Fors said this week the hearing is tentatively scheduled for 3:30 p.m. Friday, Dec. 17.

She said a Jefferson County judge was unavailable to hear the case.

The businesses, represented by attorney William Payne of Sequim, said the mandate was unconstitutional, violated the rights of Clallam County restaurants to equal protection of the law, was arbitrary and capricious, and discriminates between eating-drinking establishments and other businesses where patrons congregate.

“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.

Clallam County’s population is 69.2 percent vaccinated with a COVID-19 case rate of 292 per 100,000 population, far above the 75-per-100,000 rate Berry said Monday must be achieved to remove the mandate.

Civil Deputy Prosecuting Attorney Bert Boughton said the assertion the mandate had caused “irreparable damage and economic harm” was “a bare legal conclusion without any supporting facts.”

He said the mandate does not limit a fundamental right.

“The state has a legitimate governmental interest in preventing the spread of COVID-19, and the courts have routinely applied the Rational Basis test to pandemic-related legislation, mandates and proclamations,” he said.

Boughton said the mandate is “factually neutral” and denied it is discriminatory.

And rather than being arbitrary and capricious, “the mandate is rationally related to a legitimate governmental interest to prevent the spread of the COVID-19 virus,” he said.

The lawsuit alleges “evidence is well established now that vaccinated individuals are still able to infect others and not be infected with COVID-19.”

Boughton responds, “Defendants are not aware of any credible scientific evidence which shows that vaccinated individuals transmit COVID-19 at the same rate as unvaccinated individuals.”

The lawsuit alleges that many jurisdictions and counties allow proof of recovery from COVID-19 “within a certain period of time” as an alternative to showing a vaccination card.

“Defendants lack sufficient knowledge to admit or deny what other un-named jurisdictions or counties allow and why, and therefore deny” the claim, Boughton writes.

Clallam, Jefferson and King are the only counties in the state that Jaime Bodden, managing director of the state Association of Local Public Health Officials, is aware of that have imposed a proof-of-vaccination mandate for restaurants and bars, she said Dec. 13.

Nor are there any cities in Washington with similar mandates — 624 are listed at washington-demographics.com — that Brian Daskam, communications manager for the Association of Washington Cities is aware of, he said last week.

The mandate allows vaccinated individuals with compromised immune systems to dine and drink in eateries and bars.

“Defendants deny that being immuno-suppressed renders the vaccines useless or reduces their effectiveness equivalent to being unvaccinated,” Boughton wrote.

Berry’s mandate allows outdoor dining and drinking by unvaccinated individuals.

“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 in the order.

Bodden said the King County order was imposed following consultations with restaurant owners.

“That’s a luxury, and not necessarily the case everywhere,” she said.

Oasis owner Dale Dunning and Kokopelli Grill-Coyote BBQ Pub owner Michael McQuay said on Dec. 13 that Berry is unreachable, which Berry disputed.

McQuay said the mandate was sprung too fast on restaurant owners, to which Berry responded the Labor Day holiday, which generates large gatherings, was fast approaching Sept. 6.

McQuay and Dunning compared their establishments to movie theaters, which need not require vaccinated customers.

McQuay said he and Dunning could have stomached being ordered to run at 50 percent capacity.

Dunning said his business fell off 20 percent immediately after the order was imposed, “and that’s true for a lot of restaurants,” he said. “That’s not due to inflation, it’s not due to other things.”

Said McQuay, “All I’m saying is, I know the mandate has affected our business.

“We’ve seen it when I ask if people are vaccinated and watch a six-top about to come in and turn around and leave.”