A judge is set to address a motion requesting to dismiss a charge against U.S. Surgeon General Jerome Adams, whom police cited in late August for allegedly violating an emergency order at an Oahu park.

The hearing is scheduled to be held Feb. 10 at Circuit Court on the motion filed by attorneys Michael Green and Alen Kaneshiro, who is representing Adams and his aide, Dennis Anderson- Villaluz.

The emergency order violation is considered a misdemeanor, punishable by up to $5,000 fine, a year in jail or both.

In the motion, attorneys representing the two men described the emergency order statute that police officers cited the men for allegedly violating as “unconstitutionally vague.”

Police cited Adams, his aide and their tour guide, Kelmer Beck of Bike Tour Hawaii, at Kualoa Regional Park in Kaneohe on Aug. 23.

A temporary shutdown of all Oahu beach parks was in place at the time under former Honolulu Mayor Kirk Caldwell’s emergency order to prevent large social gatherings to reduce the spread of COVID-19. Loitering or sitting on the beach were prohibited; however, individuals were still allowed to traverse a beach to enter the ocean to go swimming, paddling and other water- related activities during the shutdown.

On the morning of Aug. 23, Beck picked up Adams and Anderson-Villaluz from their hotel in Waikiki and drove them to Kuaola Regional Park to go swimming. When they arrived, they walked to the ocean and saw that the water seemed dirty, Green said in the motion.

The men opted not to go swimming and started to walk back to their vehicle. During the walk, the men briefly stopped as Beck took photos of Adams and Anderson-Villaluz with Chinaman’s Hat in the background.

About halfway to their vehicle, the tour guide suggested they take another picture and took a photo of them with the Kualoa mountains in the background. Beck offers complimentary scenic photos to his clients as part of the tour.

When they reached their vehicle, police officers approached them and cited them for allegedly violating the emergency order. “The entire walk — down to the ocean and back — took no more than five minutes,” Green said in the motion. “There was no one else around them.”

“(Adams) did not loiter or even sit down at any point during his walk,” he added.

Adams was in Hawaii helping the state with surge testing to reduce the spread of the coronavirus outbreak. According to his citation, he told the officer he was working with the governor for COVID-19 and didn’t know the parks were closed.

The state had exempted Adams and his aide from the 14-day quarantine.

In the motion, Green described the order as “unconstitutionally vague” and requested the case against the two men be dismissed.

Matt Dvonch, spokesman of the prosecutor’s office, said the case is under review by the new administration, and declined further comment.

Prosecutors have offered many people who were cited for an emergency order violation to reduce the misdemeanor charge to a noncriminal violation such as simple trespassing.

In October, Beck pleaded no contest to simple trespassing at Kaneohe District Court and paid a $100 fine.

Beck’s attorney, Eric Seitz, believes the case against Adams and his aide should be dismissed. “There’s clearly no intent to violate anything. … (Adams) came here to help people,” he said.

Seitz said individuals employed by the federal government face serious consequences if they accept a deferred plea.

Adams, vice admiral in the U.S. Public Health Serv­ice Commissioned Corps, oversees more than 6,000 uniformed health officers who serve in nearly 800 locations around the world, according to the U.S. Department of Health and Human Services website.

Seitz said, “The federal government does not necessarily accept a deferred plea as a favorable disposition. They treat it as a conviction.” He said a deferred plea could have serious detrimental impacts on an individual’s career, especially if they need a security clearance to do their job.