DougCo mask exemption health order temporarily paused by judge

Judge says plaintiffs have 'much that can be lost' by its enforcement

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Douglas County’s public health order requiring all entities to allow exemptions to mask mandates has been temporarily paused by a judge, according to a March 4 order.

District Court Judge Jeffrey Holmes granted the motion for a preliminary injunction, writing that plaintiffs in the case — a local Montessori school and a hair salon — proved all the necessary criteria to do so.

“The DCHD purported to issue its order creating exemptions from mask wearing requirements on October 8, 2021, which was well before the DCHD arguably had the authority to issue such an order,” according to Holmes’ order.

That temporary pause on the public health order will remain in place until a full trial can take place. 

The Douglas County Health Department declined an interview on the judge’s order, saying the case is still under litigation.

“The public health order does not prohibit local businesses – nor anyone else – from mandating masks and consistent with good public health practices, the Public Health Order requires businesses to allow individual exemptions for health reasons,” according to an emailed statement attributed to board president Doug Benevento.

Holmes also found there was “danger of real, immediate and irreparable injury” if the public health order continues to be enforced and the plaintiffs have no legal remedy.

“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,” according to the order. “If plaintiffs comply with the order, they face compromising their health, that of their families, their employees and their customers.”

The school and hair salon also face criminal charges and possible jail time for failing to comply with exemption requirements of the public health order, Holmes wrote. 

“Plaintiffs have much that can be lost by the enforcement of this order,” Holmes wrote. “On the other side of the balance, there is no indication that harm would result from allowing the plaintiffs to enforce their mask mandates.”

The original complaint filed by Igor Raykin on behalf of the Parker Montessori school and Curl Up N Dye hair salon in Castle Pines also argued the entire health department was formed unlawfully. 

They allege that the Douglas County Health Department “was not lawfully constituted” because the county did not “provide the statutorily required one-year written notice" before withdrawing from the Tri-County Health Department.

The county has argued that the one-year notice they sent to Tri-County in July 2020 but rescinded soon after was revived when the health agency went back on their agreed terms. 

In response to this argument, Holmes wrote it is “unnecessary for the court to resolve” that issue at this time.

Background

After months of disagreements with Tri-County Health Department, Douglas County in July 2020 gave the required one-year notice that it would form its own health department but later walked that decision back after Tri-County agreed to allow counties to opt out of public health orders. 

In August 2021, Tri-County voted to stop those opt-outs and enacted a school mask mandate. As a result, the Douglas County commissioners immediately split from the health agency and formed their own, claiming the original one-year notice from July 2020 was revived because Tri-County had gone back on the earlier agreement.

When the new Douglas County Health Department first approved its exemption order in October, the board of health told Colorado Community Media that it would only be enforced in schools, even though its language could technically apply anywhere in the county.

On Oct. 26, a judge ordered the Douglas County Health Department to temporarily stop enforcing the exemption order in schools after the school district sued the department, arguing the rule violated the civil rights of students with disabilities. 

After a school board election changed the district’s board to be mostly made up of anti-mask-mandate members, the board of health voted Nov. 12 to amend their exemption order so it would no longer apply to schools. 

“Our current public health order requires places of public accommodation that are requiring masks to provide exemptions to individuals for health reasons,” according to a statement on the Douglas County website dated Nov. 24.

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