Two area businesses face legal trouble for flouting mask mandate

Health department staff members have handed off at least two businesses to the county attorney for defying Dr. Brad Black’s pandemic-related July health order.

The names of the businesses were not immediately available. Kathi Hooper, health department director, told the Lincoln County Board of Commissioners on Oct. 14 that “a couple” of businesses had exhausted the agency’s multistep enforcement process.

Responding to an inquiry by email, County Attorney Marcia Boris wrote that her office was first informing the business owners of the penalties for ignoring or flouting the order.

“In an effort to avoid formal litigation, we have been and will be reaching out to those businesses initially to advise them of the potential consequences they may face as a result of failing to comply,” Boris wrote. “Continued noncompliance would then result in formal action by my office.”

In July, Dr. Brad Black, the county’s health officer, issued an order in response to an uptick in coronavirus cases in the county and across Montana. It closely followed a directive issued by Gov. Steve Bullock and mandated that residents don masks in areas that where social distancing guidelines are impractical to follow or ignored.

Enforcement of the mask mandate in local shops and stores has largely fallen to owners and employees. Local law enforcement officials said during the summer that they plan to educate people on the state directive and local order rather than enforce it.

Health department officials detailed their enforcement process in late August, after several county business owners openly defy the orders. Upon learning of an infraction, department employees contact the business owner and explain the requirements. A second infraction draws a notice from the department. Additional reports of violation end with a written letter outlining potential legal action.

At that point, violations can be referred to the county attorney’s office.

Hooper said officials had built flexibility into the process, telling commissioners that good-faith attempts to rectify the situation are met favorably.

“If they resolve the complaint we start over,” Hooper said. “It is not so clear as one-two-three.”

Hooper also said enforcement was aimed at businesses that flout the regulations. A business would not be held responsible, for example, for customers refusing to wear a face mask while shopping indoors.

“If we receive a complaint, we notify the business and we really focus on [employee compliance],” Hooper said. “We are really focusing on … do you have the supplies you need? Do you understand the rule? We’re doing education. We’re understanding that a business can’t control every person.”

Hooper delved into the department’s enforcement of the governor’s mandate and Black’s health order at the behest of County Commissioner Josh Letcher (D-3). He warned that Lincoln County did not want to end up defending the mask mandates in the courts.

“We don’t want to take this to the Supreme Court,” he said. “I’m not sure we want to be spending taxpayers’ dollars to [litigate] the taxpayers just to end up at the Supreme Court.”

Letcher later questioned the severity of the pandemic. Were it as bad as it was made out to be, state and local officials would be discussing another economic shutdown, he said.

“You would think if it were that high of a catastrophe, they would talk about [closing down businesses],” Letcher said.

Part of the trouble with underscoring the severity of the situation, said County Commissioner Mark Peck (D-1), was that Lincoln County went through the spring and summer with very few cases.

“The problem is we never had a first wave here,” he said.