New Legislation Voids Whitefish Mask Ordinance Days Before Expiration

Signed into law by Gov. Greg Gianforte, House Bill 257 prohibits local governments from compelling businesses to enforce emergency health requirements

By Tristan Scott
Mary Kay Goodson sits outside a restaurant in downtown Whitefish on July 13, 2020. Hunter D’Antuono | Flathead Beacon

On May 7, less than a week before Whitefish’s emergency mask ordinance was set to expire under a 90-day provision enacted in February, Gov. Greg Gianforte signed House Bill 257 into law, effectively killing the local public health directive in its final days and making it illegal for elected officials to enact future pandemic response measures that impose restrictions upon area businesses.

Anticipating the passage of HB 257, Whitefish city council members hadn’t seriously discussed extending the local mask ordinance beyond the existing May 13 expiration date; nevertheless, they begrudge the state’s intercession, particularly after dedicating much of the past 14 months to meeting the unique needs of local constituents and businesses during the height of the pandemic, which in Whitefish corresponded with peak tourism season, as well as a spike in new arrivals seeking refuge from the pandemic as it intensified in urban areas.

“Many of the bills during this legislative session are an overreach by the state government limiting local control,” Whitefish Mayor John Muhlfeld said. “As we know Montana is vast and our communities and our challenges are unique. This is another example of this legislative session’s narratives that contradict this fact, and leave local governments with more challenges after a difficult year.”

Introduced by Rep. Jedediah Hinkle, a Belgrade Republican, HB 257 removes the ability of local governments and health officials to issue and enforce ordinances that deny customers access to a business’s goods or services, or that require a business to do so. Hinkle and other supporters of the measure say it’s a necessary response to what they view as overreach by local health officials who enacted temporary restrictions on businesses in an effort to curb the spread of the coronavirus. To date, the COVID-19 pandemic has killed 1,592 Montanans and sickened more than 100,000 others.

In Whitefish, however, the local community was largely supportive of the city’s efforts to keep the virus at bay by limiting the inrush of out-of-state visitors, while numerous businesses valley-wide have continued to require masks and face coverings, doing so even after Gianforte rescinded the statewide directive in February.

Despite the new legislation, businesses may continue to require patrons to wear face coverings.

In addition to becoming one of the first municipal governments in the state to adopt an enforceable mask mandate, Whitefish was the first city in Montana to enact an emergency ordinance prohibiting hotels and short-term rentals from accepting reservations for non-essential purposes. Whitefish City Council adopted the restrictions on lodging facilities in response to an inrush of out-of-state visitors, who converged on Whitefish seeking respite from the pandemic in cities with higher population densities.

“People were coming to our community to avoid the impacts of the pandemic in larger cities, and that was a situation where we wanted to not be inviting those individuals in,” Whitefish City Manager Dana Smith said. “I think it was very important for us to protect our local community members, businesses and our frontline workers. And based on the support we received, the community agreed.”

That same response, however, would be prohibited under HB257, Smith said.

“Our lodging ordinance would have been invalidated,” she said. “Essentially every ordinance that our city council enacted, except perhaps for the ordinance allowing it to conduct city business remotely, would be invalidated by this legislation, and likely would not be possible in the future.”

Whitefish city officials have voiced strong opposition to HB 257, which denies municipalities the authority to enforce restrictions on businesses through the assessment of a fee or fine, revocation of a business license, to find a private business owner guilty of a misdemeanor, or bring any other retributive actions against a business.

“At the beginning of the pandemic, we had businesses coming forward pleading for a mask requirement because they were so worried about having to shut down as visitors started arriving in town,” Smith said. “The city of Whitefish’s response to the pandemic was a response to the needs of its community.”

Gianforte explained his amendments in a letter to lawmakers, describing the bill as an effective tool to prevent “overreach” at the hands of local health officials.

He wrote: “It’s critical that we avoid fundamentally reshaping Montana’s local public health system as a consequence of actions taken in response to the current pandemic — but rather consider proposals that address the ongoing issues created by ‘one-size-fits-all’ regulations, orders, directives or mandates while allowing local public health officials to do their jobs.”