Enforcement of state COVID-19 health restrictions will head to court in Flathead County in early November. The restraining orders filed by Gov. Steve Bullock’s administration in Flathead County District Court last week followed growing tension between local officials about how and if to enforce public health restrictions aimed at slowing the spread of COVID-19.
Gov. Bullock announced his office’s first legal action against five businesses in Flathead County for allegedly not complying with state COVID-19 health restrictions including the state mask mandate.
"These businesses are putting people at significant risk," Bullock said.
The restraining orders were filed against Sykes Diner and Market, and Scotty’s Bar in Kalispell, The Remington Bar in Whitefish, as well as the Ferndale Market, and Your Lucky Turn Casino and Mercantile in Big Fork. So far, the court has refrained from shutting them down and has scheduled hearings in early November.
The legal action highlighted a growing dispute in Flathead County over the enforcement of public health rules. In recent weeks, as COVID-19 cases increased in the Flathead, county officials have declined to put in place new restrictions and enforce state rules already in place. The Governor’s Office says it went to the court, in part, because of local officials' lack of action.
Your Lucky Turn Casino and Mercantile owner Douglass White, who is named in the complaints, says he’s done everything he can to follow state health restrictions and guidelines, including providing masks, face shields and hand sanitizer to his customers.
"It’s not really this three-generational family’s responsibility to become the mask cop, but in light of this, we have become the mask cop," White says.
The other businesses named in the governor’s complaints declined to comment or weren’t able to be reached by MTPR.
In court documents, state health officials say they stepped in to enforce public health mandates because the Flathead County Attorney Travis Ahner wasn’t taking action on complaints forwarded to his office by the local health department. Ahner says there’s good reason for that.
"It doesn’t make sense to me to sideline or file actions against these four businesses when we can’t establish that they’re contributing more to our positivity rates than any other business."
University of Montana Law Professor Anthony Johnstone says Ahner’s argument doesn’t hold up. He explains that Montana law doesn’t require proof of harm to prosecute health violations. He says county attorney offices are the front-line authority when attempts to bring businesses into compliance through education fail.
"Everyone prefers a route where compliance is obtained outside of court," Johnstone says. "It’s quicker, it’s safer, it’s less expensive for everyone,"
Johnstone adds that with Flathead County being one of the state’s COVID-19 hotspots, it would even be on strong legal ground to go above and beyond state health restrictions.
"They have the authority to take these actions, particularly given limits on testing and contact tracing."
Earlier this month Flathead County health Officials declined to put in place new restrictions on group sizes and capacity at bars, restaurants and churches.
Counties like Missoula and Yellowstone have taken steps to put in place new restrictions. Flathead county commissioners have openly called for residents to decide for themselves whether to wear a mask. County Attorney Ahner has also cast doubt on the enforceability of restrictions on certain businesses.
Tamalee Robinson, the Flathead County health officer, says it’s hard to impose restrictions without the support of commissioners, the county attorney and health board members, who also voted down a 500-person event cap limit this month.
"Like I said, I can make an order, and if there’s no enforcement and prosecution of it, what good is it?"
There are about 625 active cases in Flathead County, down from the county’s peak earlier this month when it regularly tallied over 1,000 active cases. Still, Robinson is concerned about the upcoming Halloween holiday weekend spiking cases once again.
Whitefish City Council members wrote a letter to the county health department encouraging them to reintroduce county health restrictions brought by Robinson. The city is now taking its own action.
Jennifer Norton was one of the five council members to vote in favor of limiting bar and restaurant capacity in Whitefish Halloween weekend to 75 percent. Those businesses are also required to close at 11:30.
"We as a city are being forced to take action, and I’m hoping that over time, the county will also take action," Norton says.
But Norton adds that she has no hope of that happening before Halloween weekend and the surge in cases that could follow.