Judge Denies State’s Attempt to Force Businesses to Comply with Mask Directive

Montana Department of Public Health and Human Services brought lawsuits against five Flathead County businesses last month

By Andy Viano
Judge Dan Wilson presides over a case brought to Flathead County District Court by the Montana Department of Public Health and Human Services against five Flathead County businesses on Nov. 12, 2020. Hunter D’Antuono | Flathead Beacon

Flathead County District Court Judge Dan Wilson rebuffed a request by the Montana Department of Public Health and Human Services (DPHHS) to act against five local businesses that the department claims were operating in violation of a statewide mask directive aimed at slowing the spread of COVID-19.

Wilson denied the request for injunctive relief Thursday afternoon following a full day of testimony from state and local health officials along with representatives of all five businesses facing the consolidated lawsuit: Sykes Diner and Mercantile, Scotty’s Bar and Casino, Remington Bar and Casino, Ferndale Market and Your Lucky Turn Casino. In a pointed ruling delivered from the bench, Wilson announced he found insufficient evidence to support the state’s claims that the businesses were not being strident enough in compelling employees and patrons to wear masks, and declared that he found the five were making a “reasonable effort” to comply with the order.

The ruling may not be the end of the legal battle, however. Wilson indicated during the hearing that he expected his decision would be appealed to the Montana Supreme Court and even if that does not happen, the denial of injunctive relief does not mean the case has been dismissed, although Wilson cautioned DPHHS attorneys that continuing to prosecute the case without providing additional evidence would be likely to yield a dismissal and the awarding of court fees to the defendants.

Four of the five separate cases were filed by DPHHS on Oct. 23, the same week that licensed sanitarians from the department visited a number of Flathead County businesses to conduct inspections. The five defendants were all visited more than once and inspectors observed few employees or patrons who were wearing masks at each visit. All five businesses had previously been the subject of complaints filed with the Flathead City-County Health Department and two of the businesses — Sykes Diner and Ferndale Market — were referred to the Flathead County Attorney’s Office for prosecution, although no legal action was brought at the county level.

Thursday’s consolidated case hinged on a July 15 directive issued by Gov. Steve Bullock that required businesses post signage requesting customers wear masks while indoors, provide masks or other face coverings to employees, and they take “reasonable measures” to ensure compliance. The directive included exceptions for children less than 5 years of age, anyone with a health condition that precludes them from complying, and those who are eating or drinking. It provides no direct mechanism for enforcing the directive, however, leaving that up to local authorities.

In a stinging denial, Wilson borrowed from defense arguments that state inspectors should have asked the unmasked people they observed whether or not they were doing so for medical reasons, that business owners were not compelled to investigate their employees’ reasons for not wearing a face covering, and that undefined “reasonable measures” were left to the judge to define.

Defense attorneys also presented evidence that when employees had asked customers to comply they have been treated with hostility, including one instance at Your Lucky Turn when owner Doug White said a customer placed his hand on a holstered firearm and told an employee, “why don’t you make me” comply. That employee, White said, quit his job the next day. DPHHS argued that noncompliance with mask directives was harmful to the public but Wilson said that harm must be balanced with the damage caused to businesses and employees, specifically citing the now-former Your Lucky Turn worker as an example.

The lawsuits were brought just days after Gov. Bullock singled out Flathead County as a COVID-19 hot spot, saying action would be taken against “egregious violators” of the mask directive. In the weeks since then, Flathead County’s caseload has only increased, with 155 new cases reported on Nov. 11. The county is averaging nearly 109 new cases per day in November, although it was pointed out by defense attorneys and confirmed by Interim Public Health Officer Tamalee St. James Robinson that no cases have been tied directly back to outbreaks at any of the five defendant businesses.

In a statement to the Beacon, DPHHS responded to the legal setback by urging residents to be vigilant in taking precautions to prevent the spread of COVID-19.

“The Department urges members of the public to wear masks, avoid crowds, and exercise individual responsibility to avoid spreading the virus to vulnerable community members who do not have the luxury of good health,” they wrote. “As cases and deaths grow in the Flathead area, hospitals and healthcare workers are relying on individual Montanans more than ever to do their part to stop the spread.”

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UPDATE (Nov. 13, 10:30 a.m.): This story has been updated to include comment from the Montana Department of Public Health and Human Services

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