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As the situation with the coronavirus pandemic known as COVID-19 appears to be surging in 39 states across the country and cases rise in Colorado, Chaffee County has tough decisions ahead. They include how to continue to control the spread of the virus so as not to overwhelm our medical system, how to protect our economic future, and how to reopen schools.

The Chair of the Chaffee Board of County Commissioners Greg Felt, in his face mask. Courtesy photo.

At the center of the plethora of challenges are the few weapons that county leaders have at their disposal to fight a deadly and little-understood virus, for which there is no vaccine.

It is those few, meager weapons – social distancing, wearing facemasks, washing our hands and disinfecting surfaces, that have been politicized by no less than the president of the United States. He has called COVID-19 a hoax, announced that this virus will “just fade away and disappear”, rejected the advice of scientists and infectious control experts, and refused to wear a mask or allow those at his rallies to wear them or to social distance.

It is an established fact that the wearing of facemasks can stop the spread of the virus, reduce the risk to others, and can reduce the severity of the illness if contracted, by lessening the amount of COVID-19  viral shed a person absorbs.

But objections by a vocal minority of ( largely-conservative, Republican and Libertarian) residents, has made requiring facemasks difficult in Chaffee County. Law enforcement has been, not just hesitant, but has outright rejected enforcing facemask orders.

Given this, Chaffee  County leadership asked its county legal team to provided them other potential avenues of enforcement; outlining what it could do, not necessarily what it would do.

In a communication from Chaffee Asst. County Attorney Daniel Tom to the Chair of the Chaffee Board of County Commissioners, Tom outlined the county’s authority to enforce whatever it deems necessary to ensure public safety.

The entirety of that memo is shared here:

Public health has the broad authority to require, mask, enforce isolation orders, and to require people to participate in contact tracing.  Under CRS 25-1-506(3)(b)

In addition to other powers and duties, an agency (county public health) shall have the following duties:

  • “To investigate and control the causes of epidemic or communicable diseases and conditions affecting public health;”
  • “To establish, maintain, and enforce isolation and quarantine, and in pursuance thereof, and for this purpose only, to exercise physical control over property and over the persons of the people within the jurisdiction of the agency as the agency may find necessary for the protection of the public health;”

Under section CRS 25-1-506(3)(b)(V) Public Health has the broad power to implement any orders/requirements to “control” the cause of an epidemic.  If Public Health finds that masks can control COVID19 and prevent it from being communicated to other members of the public, Colorado law gives Public Health authority to require masks.

Under CRS 25-1-506(3)(b)(VI) Public Health can establish, maintain and enforce isolation and quarantine orders and exercise physical control over the person and property as necessary to maintain the isolation/quarantine order.  I would interpret that “establish/maintain” gives Public Health broad authority to require people to participate in contact tracing since knowing who may be infected allows Public Health to establish/maintain isolation/quarantine orders on others who may be infected.

Courtesy photo; Keith Baker in his mask.

Under CRS 25-1-516(1)(a): It is unlawful for any person, association, or corporation and the officers thereof to:

Willfully violate, disobey, or disregard the provisions of the public health laws or the terms of any lawful notice, order, standard, or rule;

A violation of the statute is a class one misdemeanor.

We [the county] can enforce violations of a public health order as follows:

C.R.S. § 25-1-112 provides authority for the district attorney, at the request of the Public Health or the local health department to bring civil or criminal actions.

C.R.S. § 25-1-514 provides authority for the district attorney to bring civil and criminal actions at the request of the county or district public health director.

C.R.S. § 25-1-514 provides authority for the county attorney to bring civil and criminal actions at the request of the county or district public health director.

In addition, we could seek administrative remedies associated with licensing procedures.  Potential remedies include taking actions to revoke a license or fail to renew a license based on a violation of Public Health Orders.

Local Boards and governing bodies that issue licenses would determine the enforcement action to be taken.  Evidence that can be presented to a Board or governing body can come from LE investigation or other sources.

Legal authority to act on license revocation or failure to renew would come from the codes or statutes that govern the issuance of the license.

Key licenses that may be affected by failure to comply include: Business Licenses, Retail Food Licenses, and Liquor Licenses.

Finally, we would/could also pursue an ex-parte restraining order to enforce a violation of a PHO or quarantine order.  An ex-parte order can be quick and we would not need to notify the offending party.  If an order is issued the court would have a hearing within 14 days to hear/take evidence.

Just to emphasize the County Attorney’s Office and Public Health staff can work together to enforce any violation of a PHO without the reliance/assistance of law enforcement.  While having the assistance of law enforcement would be helpful, such as writing a report, testifying in court, and issuing a citation, it is not necessary for us to start any enforcement procedure.  Most likely, we would start with an ex-parte restraining order and then follow-up with potential civil/criminal enforcement.

The Chaffee Board of County Commissioners has not yet taken any action on the communications. This link outlines where facemasks are required in the state of Colorado.