Update: Judge Tosses Dougco's Jail-for-Requiring-Masks Order

Late in the day on Friday, March 4, 18th Judicial District Judge Jeffrey Holmes granted a motion for a preliminary injunction against the Douglas County Health Department over a provision in its November 2021 public-health order that threatened criminal penalties against Douglas County business owners who made wearing a face covering a requirement for entry.

As detailed in the post below, published early on March 4, the case was brought by two Douglas County business owners represented by attorney Igor Raykin; they asked that their names not be published for fear of retaliation from anti-maskers.

In his seven-page ruling, Judge Holmes applied a six-prong approach to considering whether to give the nod to the plaintiffs' motion: "Reasonable Probability of Success on the Merits," "Danger of Real, Immediate and Irreparable Injury," "Availability of a Plain, Speedy and Adequate Remedy at Law," "Disservice to the Public Interest," "Balance of Equities Favors Injunction" and "Preservation of the Status Quo." In each instance, he found in favor of the plaintiffs.

Regarding the "Balance of Equities Favors Injunction" matter, Holmes wrote, "Plaintiffs have much that can be lost by the enforcement of this Order. On the other side of the balance, there is no indication that harm would result from allowing the Plaintiffs to enforce their mask mandates."

As for the issue of status quo preservation, Holmes contended, "Mask requirements have been the norm during the pandemic. TCHD [Tri-County Health Department, Douglas County Health Department's predecessor] imposed a mask mandate. Mask requirements have been lessened as the public health issues have receded. Various gathering places have had their own mask requirements in place, even when particular governmental entities have not required them. The ability to choose to have such requirements has clearly been the norm and this Order would change the ability of these business owners to require masks on their premises. A preliminary injunction would preserve the status quo."

The document ends with this conclusion: "Motion is GRANTED. The court hereby orders that the Defendant, and anyone on its behalf, is enjoined from enforcing the 'Public Health Order Allowing Exemptions From Facial Coverings and Preventing Quarantining of Asymptomatic Individuals' against the Plaintiffs or their Businesses."

Continue for our previous coverage.

Original post, 8:35 a.m. March 4: A little-known provision of the November 2021 Douglas County Health Department order that lifted face-covering requirements for indoor public spaces threatened any business owner who required a customer to mask up with a fine or jail sentence.

That provision is the focus of a motion for a preliminary injunction, and was the subject of a hearing last week in an 18th Judicial District courtroom. Irony alert: According to an order from Chief Judge Michelle A. Amico, "All persons must wear face coverings in the public and non-public areas of the courthouses and probation offices in the 18th Judicial District until further notice."

The attorney behind the case is Igor Raykin of Aurora's Kishinevsky & Raykin, who's well-known in Dougco. During a February 16 meeting, the Douglas County Board of Education's conservative bloc was expected to release the names of teachers who protested the firing of superintendent Corey Wise by participating in a sickout that resulted in classes being canceled throughout the Douglas County School District on February 3. But that didn't happen, and one reason may have been a letter to boardmembers from Raykin that included this: "I want to be clear as day here: if you release those records and a single educator is hurt, I will drag DCSD and all of its toxic Board members into court and force them to answer for their conduct."

Raykin, who interned for Westword back in the 1990s, declines to comment about his Douglas County Health Department motion beyond what's stated in the document. Likewise, the two plaintiffs in the case, who own businesses in Douglas County, have asked not to be named for fear of threats and/or retribution from anti-maskers.

Asked about the motion, Douglas County spokesperson Wendy Manitta Holmes notes, "Your inquiry is regarding a matter that is currently under litigation," then adds, "We are confident that the Douglas County Board of Health was established pursuant to all laws, regulations and agreements with the Tri-County Health Department."

Holmes continues: "The public health order does not prohibit local businesses — nor anyone else — from mandating masks." But "consistent with good public health practices, the public health order requires businesses to allow individual exemptions for health reasons."

This last statement is the pivot point for the controversy. According to the Dougco health order issued in November: "Unless required by other state or federal mandate, certain individuals shall be exempt from any Requirement to wear a Face Covering within Douglas County, if an individual aged 18 or older represents to any person or entity charged with enforcing and/or supervising such a requirement to wear a Face Covering, or in the case of a child a written declaration signed by the parent or guardian of the child, requesting to be exempted from the requirement to wear a Face Covering due to the negative impact on that individual's physical and/or mental health."

The motion for injunction argues that these rules essentially tie the hands of any business owner who wants to make masks a must for entry. "The order prevents Plaintiffs from enforcing a universal mask mandate in their businesses by requiring them to provide exemptions to any individual requesting an exemption under the order," it argues.

Moreover, owners who enforce such a mandate face potential criminal sanction, as established in this section of the Douglas County Health Department order: "DCHD will attempt to seek voluntary compliance through education, technical assistance and warning notices. However, this Order may be enforced by any appropriate legal means. It is unlawful for any person to willfully violate, disobey or disregard this Order. Any person who does so may be subject to the penalties provided in C.R.S. 25-1-516 and 18-1-3-501. In addition, if you do not comply with this Order, DCHD may seek a court order in Colorado state district court to enforce this Order and/or to restrain or enjoin any violation of this Order."

C.R.S. 25-1-516 is a part of the Colorado Revised Statutes pertaining to "Health: Unlawful Acts — Penalties." It establishes that "any person, association or corporation, or the officers thereof, who violates any provision of this section is guilty of a class 1 misdemeanor." Under the state's criminal code, the minimum punishment for conviction of such a crime is "six months imprisonment, or five hundred dollar fine, or both," while the maximum is "eighteen months imprisonment, or five thousand dollars fine, or both."

A decision is pending on the motion for a preliminary injunction.

In the meantime, Douglas County's website includes a page that touts its "business-friendly environment." But if any business wants to require that customers wear masks, that friendliness evaporates quickly.

Click to read the Douglas County public-health order.