The Montana Department of Public Health and Human Services has sought court approval to force four Flathead County businesses to come into compliance with a statewide mask directive intended to slow the spread of COVID-19.
In four separate filings for temporary restraining orders submitted Friday in Flathead County District Court, DPHHS asked that Sykes Diner and Mercantile in Kalispell, Remington Bar and Casino in Whitefish, Your Lucky Turn Casino in Bigfork and Ferndale Market be made to comply with an emergency declaration issued by Gov. Steve Bullock in July. That directive, which was authorized in accordance with nationwide and statewide emergency declarations, requires face coverings to be worn in all indoor spaces open to the public.
Late Friday afternoon, district court judges Amy Eddy, Heidi Ulbricht and Dan Wilson denied the department’s request for a temporary restraining order (TRO) against Sykes Diner, Remington Bar and Ferndale Market, instead ruling that the parties appear in court in early November for a hearing on the proposed injunction. In Eddy’s written decision, she cited a Montana code (§27-19-315) that allows restraining orders to be granted without notice only when “a delay would cause immediate and irreparable injury to the applicant.” In its filings, DPHHS argued that allowing the businesses to continue to operate in violation of the mask directive was contributing to the spread of COVID-19 and therefore causing harm to the public.
In short, the rulings mean DPHHS can take no formal action against those businesses until the hearings are held. Ferndale Market (Eddy) and Remington Bar (Wilson) are scheduled to appear on Monday, Nov. 2. The hearing with Sykes Diner (Ulbricht) is Nov. 5. Judge Robert Allison had not yet ruled on the TRO filed against Your Lucky Turn as of 4:50 p.m.
In a statement, DPHHS responded to the rulings early Friday evening.
“The court denied pre-hearing relief and set hearing dates. It’s DPHHS’s hope that these hearings never happen, and that we can work collaboratively with the businesses to protect their customers and staff. Some businesses have already come forward and we are working together to remedy the issues identified,” they wrote.
“Flathead County continues to have one of the highest active counts in the state. As this weekend’s snowstorm sets in, DPHHS encourages all Montanans to remain vigilant about the spread of the virus by practicing social distancing, avoiding crowds and large gatherings, and wearing a mask. Through these simple steps, we can stop the spread of the virus and protect the most vulnerable in our communities.”
DPHHS spokesman Jon Ebelt also told the Beacon that the department will “immediately end proceedings against any business that comes into compliance” with the mask directives, but did not specify how compliance would be measured.
Each of the initial filings details the state of the COVID-19 outbreak in Flathead County, which has been growing rapidly for more than a month. The county has reported more than 1,500 new confirmed cases of the virus since Oct. 1 and court documents indicate that more than 800 cases are currently active. DPHHS alleges that the four businesses’ refusal to enforce mask wearing by their employees and customers “is contributing to the increased spread of a dangerous infectious disease.”
The state health department urged that the court grant the restraining orders and keep them in place until the four defendants cease operating “in a manner that constitutes a public nuisance and is injurious to public health.” The Flathead County Sheriff’s Office would be enlisted to enforce the orders.
As of Friday afternoon, it was unclear what enforcement measures the health department would take against the businesses if the restraining orders are granted but those actions could include temporary closures.
In recent weeks, Bullock has repeatedly singled out Flathead County due to its surging case numbers and the reports of noncompliance against its local businesses, calling on county leaders to promote compliance with his directive. Members of the Flathead County Commission responded by “publicly offering support to residents who ignore the Governor’s directives,” according to Friday’s court filings.
On Thursday, Gov. Bullock announced the orders would be filed against “egregious violators” and the filings allege widespread noncompliance at all four businesses that were visited by DPHHS sanitarians on two separate occasions between Oct. 20 and 21. Officials observed numerous unmasked employees and patrons at all four businesses, and alleged the businesses did little to nothing to enforce the directive.
Doug White, whose family has owned Your Lucky Turn for more than three decades, acknowledged that some of his customers enter the convenience store without wearing a mask, or they remove their face coverings once seated inside the casino. Beyond posting the required signage explaining the mask directive, White said he provides free masks and hand sanitizer at the entrances to his business, as well as hand-towel dispensers outside of restrooms.
With an average daily customer count of about 1,600 people, however, and a seemingly never-ending list of things to do to keep the business running, White said he’s not sure what additional steps he can take to ensure compliance.
“What am I supposed to do? Accost people?” White asked when contacted about the enforcement action Friday morning. “We wouldn’t get our work done. We try to comply with everything possible, but I have suppliers coming in here all the time not wearing a mask. What am I gonna say? I can’t accept your beer delivery because the guy’s not wearing a mask?”
White also gave high marks to his 12 employees, including his daughter and granddaughter, who he said have been diligent about wearing masks. He said observations by health officials suggesting otherwise was an uncharacteristic lapse.
White also said he caters to customers who have been regulars at the landmark mercantile for decades, dating back to when the store was called “Streeter’s Corner” under previous ownership.
“I’ve got old-timers who still make out checks to Streeter’s, and some of these guys have underlying health conditions and don’t wear masks,” White said. “I do feel like it’s unconstitutional to make them put a mask on.”
“What more am I supposed to do?” he continued. “I’m looking at three hand-sanitizing stations right here in the casino. I’m looking at a sign that says please respect the six-foot rule. I’ve got napkin dispensers outside the bathroom so people don’t have to touch the doorknobs with their bare hands. And they come in and observe a couple employees with their masks down and they want to put my daughter out of work? My granddaughter out of work?”
The filings indicate that the Flathead City-County Health Department received complaints about all four businesses over the summer, and Interim Public Health Officer Tamalee St. James Robinson said the department has received hundreds of complaints since the mask directive went into effect. Per current department policy, when complaints from three different sources are lodged against a business, the department makes an educational call to encourage compliance. If 10 additional complaints are received after the first call, the department again offers education and conducts a site visit. If violations are observed at that point, the information is sent to the Flathead County Attorney’s Office to consider legal action.
To date, County Attorney Travis Ahner has initiated no action against any business. Two of the businesses involved in Friday’s filings — Sykes Diner and Ferndale Market — had been referred to Ahner, who said he declined to act against them because no specific outbreak had been linked to those locations, adding that he “wasn’t going to punish or try to sideline a business when they weren’t responsible for the spread.”
St. James Robinson agreed with Ahner that no outbreaks had been linked to specific businesses; however, she said tracing cases to high-traffic businesses like the four acted against on Friday is an unreasonable expectation. COVID-19 has a 14-day incubation period so identifying where someone contracted the virus, especially if they visited multiple places during the prior two weeks, is extremely difficult.
“We couldn’t trace somebody who went to a convenience store. That’s impossible,” she said. “But the masking directive is the masking directive.”
St. James Robinson said she was unaware DPHHS had sent officials to Flathead County this week and was given no heads up about Friday’s filings, but she strongly praised the state’s action. The county’s top health official, who just last week was rebuffed by the county board of health after she proposed enacting stronger restrictions on bars, restaurants, churches and other large gatherings, hoped that after months of urging the community to take coronavirus seriously the action by DPHHS could “be a wake-up call.”
“I do think that this will probably make people take the masking order a lot more seriously,” she said. “I’ve been pleading with the public for months to take this seriously to try to protect our businesses and our hospitals and our schools. There were a lot of people who were blatantly disregarding the directive.”
Ahner, for his part, criticized the decision by DPHHS to intervene, and offered that while the county health department has struggled to investigate a deluge of cases because of a staffing shortage, the state opted to intervene in the county by taking local businesses to court.
“To me, it doesn’t make sense to go after businesses when we don’t have evidence that they are responsible for the spread,” Ahner said. “I think we’re being singled out and I don’t see a rational basis for it.”
Update (10/23/20, 4:20 p.m.): Three district court judges denied the DPHHS requests for temporary restraining orders and set hearings for early November. This story was updated to reflect the denials.
Update #2 (10/23/20, 6:20 p.m.): The Department of Public Health and Human Services released a statement in response to the rulings. The story has been updated to include their statement.