Two businesses in Douglas County — a hair salon and a daycare — can mandate face coverings on their premises after a judge a preliminary injunction issued barring the county from enforcing a public health order it issued last fall that left discretion on mask use up to customers and parents.
It’s the latest twist in a larger and often contentious fight over face coverings in mask-averse Douglas County, which broke away from the Tri-County Health Department last summer to form its own health agency after Tri-County ordered students to mask up for the start of the school year to protect against the coronavirus.
A month later, the Douglas County Health Department issued a public health order barring schools or businesses from requiring residents who claim an exemption to mask-wearing to cover their faces.
A federal judge later ruled that mask exemptions in the Douglas County School District violated the Americans With Disabilities Act, but the order for businesses in the county stood.
Douglas County District Judge Jeffrey Holmes issued his ruling late Friday, writing that not only does the case touch on health and safety issues for the two businesses that sue the county, but the public health order also affects the property rights of the plaintiffs.
“If the Plaintiffs were compelled to close their businesses because of unwillingness to risk the dangers of unmasked patrons, they face a potential loss of business that would be difficult to quantify and employees would lose their employment,” the judge wrote. “If Plaintiffs comply with the Order, they face compromising their health, that of their families, their employees and their customers.”
While last week’s preliminary injunction was limited to the Parker Montessori daycare facility in Parker and Curl Up N Dye hair salon in Castle Pines, both of which sued the county at the end of last year over the mask exemption order, their attorney Igor Raykin said the court sent a larger message with its ruling.
“The court was clear that the prospect of criminally punishing business owners who are still trying to protect themselves from COVID is something that made the court very uncomfortable,” Raykin told The Denver Post Monday.
Many residents in the conservative county claim mask mandates represent government overreach and that the decision should rest with individuals. They have loudly condemned mask requirements in schools, given the low risk for severe disease the coronavirus poses for kids and the potential harm masks do to children’s ability to properly learn and socialize.
Doug Benevento, president of the Douglas County Board of Health, said in a statement Monday that the agency’s public health order “does not prohibit local businesses – nor anyone else – from mandating masks.”
“Consistent with good public health practices, the public health order requires businesses to allow individual exemptions for health reasons,” he said.
But that required exemption could put someone vulnerable at risk, said Becky Henderson, owner of Curl Up N Dye. She said she requires masks in her shop because she personally struggles with autoimmune issues.
“If I were to catch COVID, it could kill me,” she said. “I’m the one who has put blood, sweat and tears into this and it’s my responsibility that no one gets sick coming out of my store.”
But recognizing that COVID-19 numbers have been plummeting across the state for weeks, with 90% of Coloradans now believed to have immunity to the omicron variant of the virus, Henderson said she plans to lift her mask requirement on April 1.
Anitha Harshan, director of Parker Montessori, said she isn’t sure yet when she might end her mask mandate. Masks, she said, have worked well to ward off any COVID-19 infections in her daycare facility until the end of last year, when omicron surged through the state.
“We have children who are immuno-compromised and parents who are immuno-compromised and we have a responsibility to protect everybody,” Harshan said. “Most of my children are not vaccinated.”
Children under 5 are not yet eligible for a COVID-19 vaccine.
Shutting down her daycare because of a coronavirus outbreak, Harshan said, would have a greater impact on working parents than if a sandwich shop or other business were forced to close.
Holmes did not rule on the larger issue at play in the case — the contention by the plaintiffs that Douglas County’s health order lacked authority because the county didn’t give adequate notice to Tri-County that it wanted to separate and form its own public health department.
Raykin, the attorney, said that’s a fight for another day. In the meantime, Friday’s preliminary injunction was an “intelligent ruling” by the judge, he said.
“On the one hand, he protected the health of business owners and protected them from criminal prosecution but at the same time he did not interfere with the operations of the Douglas County department of health,” he said.
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