KALISPELL — A northwestern Montana judge has denied a request by the state health department for preliminary court orders to require five Flathead County businesses to enforce health orders aimed at preventing the spread of the coronavirus.
District Judge Dan Wilson said Thursday that the Department of Public Health and Human Services failed to justify immediate action against the businesses, saying they were making reasonable efforts to comply with Montana's mask mandate.
The U.S. Centers for Disease Control and Prevention and public health officials agree that face masks are effective at mitigating the spread of the coronavirus when they are widely worn.
Attorneys for the health department argued the businesses did not take "reasonable measures" to enforce the mask mandate put in place by Democratic Gov. Steve Bullock on July 15 to prevent the spread of the coronavirus.
As cases of COVID-19 continued to rise in Flathead County and local authorities declined to act against businesses that were not enforcing mandates, the state asked for a court order to force the businesses to comply.
The businesses facing legal action are Sykes Diner and Scotty's Bar in Kalispell, the Ferndale Market and Your Turn Mercantile-Your Lucky Turn Casino near Bigfork and the Remington Bar in Whitefish.
An owner or employee of each business testified that they have tried to comply with Bullock's order, but said they could lose employees or customers if they forced the issue on them.
Dave Sheeran, owner of the Remington Bar, said about half of his customers support the mask mandate and the rest oppose it.
Doug White, owner of Your Turn Mercantile and Your Lucky Turn Casino, testified that one of his younger employees asked a customer to wear a mask, but that the customer put his hand on his gun and told the cashier, "Why don't you make me put my mask on?"
The employee quit the next day, White said.
Another time, a customer cursed at his granddaughter when she asked the customer to wear a mask.
"I'm not going to put my family or my employees into that situation again," White said.
The state attorneys said that the Ferndale Market had a sign at its entrance notifying people about the mask requirement that also said the store would assume that people not wearing masks have valid medical exemptions.
State inspectors visited businesses in Flathead County and the five in court "stood out as the ones that were having the lowest level of compliance," James Murphy, the states' director of communicable disease control and prevention testified.
He acknowledged the state did not warn businesses that they could face lawsuits for noncompliance, but said the county had issued warnings.
Attorney Bruce Fredrickson, who represents four of the businesses, argued the state failed to define a reasonable effort to enforce the governor's mandate. He also said state inspectors failed to ask any customers not wearing masks if they had valid medical exemptions.
Wilson declined a request to award legal fees to the businesses, but said he would be "highly inclined" to do so if the state continues pushing the issue without presenting a stronger case.
The health department did not immediately respond Friday to an a question about whether it would continue to pursue the cases.
"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," the agency said in a statement. "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."
Flathead County reported 121 new cases of COVID-19 on Friday. Kalispell Regional Medical Center has 19 patients hospitalized with COVID-19, including four who are in the intensive care unit on ventilators.
A manager at Sykes Diner testified that three employees have tested positive for the virus and Sheeran said multiple employees at the Remington have had COVID-19, prompting the bar to voluntarily close more than once.
Early in the hearing, Wilson told a spectator in the courtroom that he needed to wear a mask or a face shield. The man left the courtroom, claiming he had a medical exemption, which the judge said he doubted.