Judge favors businesses in COVID-19 lawsuits

After a long day of testimony, a Flathead County judge declined state requests for preliminary injunctions against five local businesses accused of violating Montana Gov. Steve Bullock's masking and social-distancing mandates.

Flathead County District Judge Dan Wilson ruled Thursday afternoon that the state Department of Public Health and Human Services failed to justify immediate action against the five businesses. Wilson also declined to award the businesses legal fees but said he would be "highly inclined" to do so if the state continues pushing for a restraining order and does not present a stronger case. It wasn't immediately clear if the DPHHS would continue pursuing such an order.

The legal setback for the state comes as Flathead County remains a hot spot for coronavirus infections and county officials have punted responsibility for enforcing public health measures, placing immense burdens on local hospitals and contact tracers. Montana reported 962 new cases of COVID-19 on Thursday, including 101 in Flathead County. At least 472 people in the state have died of the disease.

The businesses facing legal action include 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. DPHHS sued them individually in late October after sending inspectors who took photos of maskless employees and customers, and signed affidavits about their observations. District Court judges later consolidated the cases into a single hearing because the complaints were legally and factually similar.

Thursday's hearing was often contentious. Early on, Wilson told a spectator he needed to wear a mask or a face shield; the man exited the courtroom claiming he had a medical exemption, which the judge said he doubted. Wilson also repeatedly chided state attorneys, once for the phrasing of a testimony objection, and several times for speaking faster than the court reporter could transcribe.

For each business, an employee or owner testified that they have strived to abide by Bullock's July 15 directive, and several contended they have exceeded the requirements of the order by offering masks to customers and implementing stringent cleaning regimens. They also said they would lose employees, alienate customers and risk going out of business if they crack down on mask enforcement.

"It's a big backlash in Whitefish," said Dave Sheeran, owner of the Remington Bar. "About half of my customers are for the mask mandate. About half of my customers are against it. No matter what happens to me today, I'm going to piss off half of my customers."

Multiple Remington employees have caught COVID-19, prompting the bar to voluntarily close more than once. Sheeran was represented by Kalispell attorney Connor Walker; the other four businesses were represented by Kalispell attorneys Bruce Fredrickson and Angela LeDuc.

Doug White, owner of Your Turn Mercantile and Your Lucky Turn Casino, testified that one of his young employees quit after being threatened by an older male customer. The customer, according to White, placed his hand on his sidearm and told the cashier, "Why don't you make me put my mask on?"

In another instance, White said a customer cursed at his granddaughter when she asked him to don a face covering.

"I'm not going to put my family or my employees into that situation again," he said.

The U.S. Centers for Disease Control and Prevention and a vast majority of public health experts agree that face masks, including non-medical-grade cloth masks, are effective at mitigating the spread of the coronavirus when a high percentage of the population wears them.

DPHHS attorneys Nick Domitrovich and Robert Lishman, who participated in Thursday's hearing via Zoom, argued the businesses had not undertaken "reasonable" or "good-faith" efforts to enforce the mask mandate. That, they argued, was clear from the number of maskless customers the inspectors observed while visiting the businesses on three consecutive days in October.

The state attorneys noted that the Ferndale Market placed a sign at its entrance notifying people of the mask requirement. The sign, however, also gave customers tacit approval to flout the requirement. It claimed a federal privacy law prohibits employees from asking about customers' health, and so the store would assume all maskless patrons have valid medical exemptions.

"In this case, we believe that we presented direct evidence that some of the defendants had signs that were not compliant with the mask directive," Domitrovich said. "When our inspectors visited those businesses, the customers and employees in those businesses were by and large – or not at all – wearing masks or other face coverings."

It was not clear to the judge, and at least some of the defendants, what the DPHHS was demanding until Domitrovich made closing arguments Thursday.

"The department understands that there's a lot of concern around these actions, both for the defendants and the community," he said. "And we're not asking that businesses be shut down … We're really asking that they operate in a manner consistent with public health orders."

Wilson, the judge, asked Domitrovich if he had misspoken, noting the department's initial demands for temporary restraining orders against the five businesses.

"In fact, it sought to close every one of them, correct?" Wilson asked.

Domitrovich clarified that the DPHSS actually wanted a restraining order that would reiterate the requirements of the governor's directive, meaning additional violations could put the businesses in contempt of court.

Bullock echoed that sentiment in a news conference Thursday, saying, "The intent isn’t to punish businesses; it’s actually to get businesses to comply."

In court, James Murphy, director of communicable disease control and prevention at DPHHS, testified that laboratory staff have been working 12-hour days, seven days a week due to uncontrolled spread of the virus. The overburdened department decided it was time to step in and enforce the governor's mandate where local efforts have failed, he said.

"A lot of this comes from our discussion when we're trying to problem-solve with local health departments, trying to talk about particular venues that have been challenging for one reason or another," Murphy said. "So I think a lot of these places came up in our discussions with Flathead County, with our review of where some of the complaints were coming from, and that kind of led to a list of places that needed to be checked out."

The state inspectors visited other businesses and found some were in compliance while some had relatively minor problems, Murphy said. The five facing lawsuits, he said, "stood out as the ones that were having the lowest level of compliance."

Murphy acknowledged that DPHHS officials did not warn any of the businesses they could face lawsuits for noncompliance. The Flathead City-County Health Department had conducted previous inspections and issued warnings, he said.

Tamalee Robinson, the county's interim health officer, said the health department had received about 670 complaints of noncompliance with COVID-19 restrictions. Twenty-four of those complaints were directed at Sykes Diner, more than any other business in the county, while 11 were directed at the Ferndale Market, she said.

A manager at Sykes Diner testified that three employees – a cashier, a dishwasher and a prep cook – had tested positive for the virus, and the latter two were still isolated at home as of Thursday.

Robinson said the health department reported Sykes and the Ferndale Market to the county attorney's office after giving each business their second notice of violation. The attorney's office took no enforcement action.

Flathead County Attorney Travis Ahner has been open about his reluctance to enforce the governor's mandate. On Oct. 22, the day the lawsuits were announced, Ahner told the Daily Inter Lake that he and local law enforcement officials decided early in the pandemic they wouldn't use criminal charges to enforce public health measures, though civil court orders would be considered.

“These things are more enforceable by the state, DPHHS and the attorney general," Ahner said at the time.

Fredrickson, the attorney for four of the businesses, called the lawsuits "frivolous" and said the state failed to define what a "reasonable" effort to enforce the governor's mandate looks like. He also said the state inspectors failed to ask if any of the maskless customers had valid exemptions.

"This case … in my opinion, was brought for some ulterior reasons. What those all were, I don't know," Fredrickson said. "To scare the hell out of other businesses in this community? Maybe. To force these businesses to capitulate before this hearing to things that go beyond this directive? Maybe."