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Oysterville businessman wins epic battle over county

County won’t appeal court ruling


Chinook Observer

Published on July 10, 2018 3:06PM

Chinook Observer
Oysterman Dan Driscoll, shown here in 2013, has prevailed in a dispute with Pacific County.

Chinook Observer Oysterman Dan Driscoll, shown here in 2013, has prevailed in a dispute with Pacific County.

OYSTERVILLE, Wash. — Oysterman Dan is back in business again.

After years of fighting Pacific County over land use and licensing issues, Dan Driscoll, 57, of Oysterville, appears to have prevailed. County officials decided not to appeal to the Washington Supreme Court after the Court of Appeals ruled in Driscoll’s favor in mid-April. And in late June, he received the license he needs to operate his retail seafood shop in his historic cannery on Willapa Bay.

“I’m thrilled that they didn’t appeal,” Driscoll said.

Driscoll’s family has sold oysters and snacks at Oysterville Sea Farms for decades. The county began to pass more formal zoning and land use policies in the 1990s. The cannery ended up in an area where retail business wasn’t allowed, but the county “grandfathered” his business since it was already established.

For years, county officials signed off on Driscoll’s efforts to offer more products and serve food, beer and wine on the store’s deck. Then, in 2011, Driscoll’s uncle — and rival — Dick Sheldon, filed a complaint alleging that Driscoll was violating his agreement with the county by selling items like jam and cereal in the seafood market. Through his attorney, Sheldon intimated that county officials might face recalls or legal action if they didn’t crack down on Driscoll.

Within weeks, authorities in the county Department of Community Development began a new effort to regulate Driscoll’s business. Their first salvo was a list of specific foods Driscoll could and couldn’t sell, based on the county’s decidedly white-bread opinions of whether the foods were “seafood-related.” Crackers were fine, they said, but pasta was most certainly not.

A turning point came in summer 2013, when the county issued a cease-and-desist letter to Driscoll that effectively brought his formerly booming business to a standstill. Driscoll asked for a review hearing in court, and that kicked off nearly five years of escalating court proceedings. In turn, Pacific County South District Court, Pacific County Superior Court and the state Court of Appeals made rulings; each more favorable to Driscoll than the last.

County Prosecutor Mark McClain, who represents county commissioners in civil matters, was tight-lipped about the case in an email.

“Not sure why Dan getting a food license is news, but OK,” McClain wrote. “My clients simply decided despite a clear error of law and misapplication of the rules of appellate procedure, they elected to not seek further review. I really cannot provide more.”

Driscoll thinks County Commissioner Lisa Olson’s diplomatic efforts helped to bring about the cease-fire.

“It was the first time we made progress talking to each other,” Driscoll said. “It’s the first time any county commissioner has been willing to talk to me and work with me.”

In early 2013, the Department of Community Development changed the way it issues licenses to food establishments. In the past, the county used an “a la carte” system, where restaurant operators paid a flat fee for the basic license, and additional fees based on which products and services they offered.

In 2013, the county switched to a system where food businesses were required to get a particular level of license, “based upon knowledge of the facility and findings during inspections,” according to a department newsletter. Driscoll had previously installed a county-approved commercial-grade kitchen. Under the old system, Driscoll was licensed to operate as a market and small-scale restaurant and oyster bar. When county staff assigned the new licenses to existing businesses, Driscoll was given a Level One license. It allowed him to make espresso drinks and sell cold, prepackaged foods. If the old license was equivalent to a moving truck, Driscoll said, the new license was a moped.

“The county specifically told us we could not slice, portion and weigh fish. They also told us we could not chuck oysters on demand,” Driscoll said.

Driscoll appealed the decision in early 2014. The county denied the appeal. In correspondence with Driscoll’s attorney, Ben Cushman, the county said the problems with Driscoll’s business were land use and zoning issues, and therefore, the health department could not make decisions about his food license until those issues were resolved.

Driscoll and Cushman asked for the necessary food license after each court decision, but did not sue the county.

“We didn’t want to have two separate legal issues going on,” Driscoll explained.

Driscoll is still frustrated over a lot of things — he thinks the county misrepresented his business to the public, leading people to believe that he was not qualified to run a food establishment. He still has an open public records-related lawsuit against the county, and he’s still considering filing a tort claim for lost income and damage to his business. He estimates he’s spent as much as $250,000 on legal fees and lost as much as $1 million in revenue.

But with the worst of the legal trouble behind him, and customers once again coming to slurp oysters and sip wine on the deck, he’s trying to focus on the future.

“We have declared that the county is no longer interfering with us, and we are in recuperation mode. Whether we’ll ever be able to recuperate to where we were in 2009, 2010, 2011 remains to be seen,” Driscoll said. “But at least we’re not fighting to protect our rights.”

He’s researching new recipes, hoping to add clam chowder and cookies to the menu soon.

Driscoll said he wants to express his gratitude to the many friends and family members who have supported him.

“People aren’t gonna let this location die,” he said.


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