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Appeals court sides with O’ville man

County could still appeal to Supreme Court or drag feet on license
Natalie St. John

Published on April 18, 2018 11:00AM

Oysterman Dan Driscoll won a Washington State Court of Appeals case. The ruling confirmed he can run his Oysterville business as he did before Pacific County began attempting to curtail the products he was permitted to sell, and where his customers could consume them.

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Oysterman Dan Driscoll won a Washington State Court of Appeals case. The ruling confirmed he can run his Oysterville business as he did before Pacific County began attempting to curtail the products he was permitted to sell, and where his customers could consume them.

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OYSTERVILLE — For the third time in as many years, a court has made a decision in oyster farmer Dan Driscoll’s long-running legal battle with Pacific County over what he is allowed to sell at his historic cannery. The April 10 state Court of Appeals decision is a clear victory for Driscoll, but he’s not ready to celebrate — he’s still waiting to hear whether the county will appeal to the state Supreme Court, and he’s still waiting for the county to grant him the food license he needs to operate his business.

“I was vindicated and I very much want to switch gears,” Driscoll said on April 16. “Instead of being in conflict with county government, I want to work with them.”

It’s not clear how the county will respond. On April 16, Prosecutor Mark McClain said he was still studying the decision.


The saga so far


Driscoll’s family has been operating their Oysterville cannery since the 1920s. For much of that time, they sold oysters and some other snacks and drinks. In the 1990s, Driscoll took over Oysterville Sea Farms and gradually began offering more products in his retail seafood shop.

By about 2010, he was also selling a few hot items like clam chowder, and the business was thriving. He decided to start serving beer and wine and put a few stools inside and chairs on his deck so customers could enjoy a view of the bay while they ate.

By then, businesses like his weren’t allowed on the shore of the Willapa Bay. However, Driscoll’s seafood shop is what’s known as a “nonconforming use” — a business that gets a pass because it existed long before the rules were put in place. He secured all the required licenses and permits with the full knowledge of the county’s Department of Community Development, which oversees planning, permitting and licensing.

Until then, his relationship with DCD had been cordial and cooperative. But in 2011, the county began expressing concerns about his business. In June 2012, DCD staff decided he had gone too far, and wrote a letter that listed foods he was, and wasn’t allowed to sell. Crackers were in, cereal and jam were out.

What followed was an escalating legal conflict with more plot-twists than an episode of “Dynasty.” Driscoll continued selling outlawed items. The county ordered him to stop. In June 2014, DCD cited him for violating county ordinances and Shoreline Master Program rules.

Driscoll asked South District Court to hold a hearing. Then-District Court Judge Doug Goelz said Driscoll had violated county policies by serving beer and wine and by putting chairs on his deck, but otherwise agreed that Driscoll’s business was operating lawfully. The county appealed to the Superior Court, arguing that Driscoll was trying to use the South District Court citation hearing to settle a land-use issue that should have been decided through a difference process. Now-retired Judge Michael Sullivan made a ruling that was even more favorable to Driscoll, and un-convicted him of the two infractions. The county asked the state Court of Appeals to review the case.

“It’s almost like being in a sporting match where people want to keep doing do-overs until they win,” Driscoll said.


Third time’s the charm?


When a county Superior Court looks at an appealed District Court case, the judge isn’t supposed to hear the case de novo — from scratch. Instead, the judge is supposed to decide whether the lower court made any legal errors. The three appeals court judges who handled Driscoll’s case said that instead of evaluating Goelz’s legal reasoning, Sullivan essentially tried the case all over again. They disregarded Sullivan’s ruling and focused on evaluating the original ruling.

The resulting 19-page decision is, by Appeals Court standards, brief and straightforward. The judges decided Driscoll was within his rights to defend his actions on the grounds that he had a “grandfathered” business. They also agreed with Driscoll and his attorney, Ben Cushman, that District Court was the appropriate venue for the case.


Three cheers for wines and beers


The owner of a “grandfathered” business is allowed to “intensify” — do more of the same thing — but not “expand” — do something new or different. The county argued that by offering new products, alcohol and chairs, Driscoll had expanded, and started to become a restaurant rather than a shop. In court, Deputy Prosecutor Don Richter said allowing Driscoll’s business to grow could set a precedent that would make it possible for other businesses — perhaps even a Walmart — to set up next to the ecologically sensitive bay.

The appeals judges disagreed, saying Driscoll “merely provided a few stools inside the store so customers could immediately eat the seafood they purchased,” and never offered tableside service, or any of the other things typically associated with bars and restaurants.

“There was no evidence that beer and wine sales were a significant part of Oysterville Sea Farm’s business,” the judges wrote. “Further, by allowing its customers to consume beer and wine onsite, OSF simply made different types of consumption available to the people that were already customers of the seafood market.”


Rearranging deck chairs


The appeals judges could scarcely be bothered to deal with the county’s concerns about the chairs on Driscoll’s deck. “In the interest of judicial economy,” they kept their remarks brief, saying District Court’s reasoning was sound, Driscoll was within his rights, and that the same reasoning applied to indoor stools worked for outdoor chairs.

“Here the evidence showed that OSF’s ‘outdoor seating’ consisted of a few tables and a few chairs,” the judges said. “Further, there was undisputed testimony that several other seafood markets in the area had limited outdoor seating.”


Seven years later


Despite the victory, Driscoll feels weary and frustrated.

“We’ve lost so much capital, so much initiative. I’m seven years older. The physical toll of oyster farming becomes a little heavier every year,” he said. Though he’s won — for the meantime — he still can’t operate because he doesn’t have a food license. And if the county decides to appeal to the Supreme Court, the case could easily go on for a year or more. Even if the county lets it go, he’s not certain he can regain the momentum his business had before everything went wrong.

“Ultimately, what we’re working toward is having the same rights we had in June 2011,” Driscoll said. “All I’m gonna get out of this is what I had. It’s hard to be gleeful about that.”

He says he’s still not sure how the county has benefited from seven years of fighting over cereal and chairs.

“I wonder what the county gained by appealing its victory in the Superior Court,” Driscoll said. “And where it plans to go from here.”



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