NEWPORT CITY — An Orleans Superior Court judge on Friday ordered Newport businessman Andre Desautels to comply with Vermont Gov. Phil Scott’s mask mandate.
In granting a permanent injunction, Judge Mary Miles Teachout said the governor’s emergency orders in response to the COVID-19 pandemic are constitutional and apply directly to Desautels as an owner who works in his Main Street print and mail shop formerly known as the UPS Store, now as Derby Port Press.
Desautels is considering an appeal.
Teachout issued her order after a three-day hearing concluded Tuesday in civil court in Newport City on the merits of a lawsuit by Vermont Attorney General T.J. Donovan. The AG asked the court to find Desautels and his business HNR Desautels LLC in violation of the mandate and rules.
A hearing on civil penalties will be held April 22.
Desautels lost his UPS franchise Feb. 17 after news broke that he was not following the mask mandate. Teachout issued a preliminary injunction Feb. 20 ordering him and his employee to wear masks at the store, which was lifted when she issued her final order Friday.
Desautels told the judge he has not worn a mask in the shop for a year, ever since the governor first issued emergency orders, and said he will not wear one. He also has not required his employee to wear a mask because of an illness but the judge noted that he did not provide a sneeze guard or shield as a recommended alternative to protect her and customers.
“Mr. Desautels stated clearly at the hearing that his intent is to not wear a mask,” Teachout wrote in her order.
“There is no evidence that he will not be continuing business operations in some manner after this date. With or without evidence of future business operations, injunctive relief is warranted under 20 V.S.A. § 40 (c) to compel compliance with the Agency of Commerce and Community Development rules.”
Teachout cited both state and defense expert witnesses who agreed that masks can block some transmission of the novel coronavirus that causes COVID-19 between people and that the more precautions are taken the better.
On April 22, Teachout will decide whether Desautels should face up to $1,000 a day for every day he is found in violation of the mask mandate.
“While I am pleased with the court’s decision, I remain troubled by the fact that this entire situation was completely avoidable,” Donovan said Friday morning.
“To the Vermonters and Vermont business owners who have done the right thing throughout this pandemic and followed the governor’s orders, I thank you.”
Bucknam commented on the judge’s order and what’s next.
“I have a great deal of respect for Judge Teachout, but I think her ruling is wrong on the law. We are discussing an appeal.”
Teachout repeated Desautels’ own testimony and that of his only employee Assistant Manager Rebecca Bingham as evidence supporting her decision.
“Mr. Desautels testified, and the court finds, that in the store they have attempted to practice social distancing ‘for the most part,’ but have not always done so,” the judge wrote.
“When they work with customers they can be within six feet. Although there are two signs up in the store about staying six feet apart, the assistant manager said they practice social distancing ‘if we can.’ They have hand sanitizers at the cash registers, and she wipes down counters and surfaces once a day.
“There is no evidence that Mr. Desautels objects to pursuing compliance with these requirements,” the judge stated.
The judge referred to Desautels’ work as a part-time basketball referee, where he wears a mask while on the court for up to an hour and a half at a time. Desautels testified that he wore a mask as a referee because he was required to by the sport organizers.
“What is clear is that neither Mr. Desautels nor the assistant manager have worn or intend to wear masks, and they do not deny entry to persons without masks,” the judge wrote.
“He has not taken any precautions to protect her or the customers she works with from exposure to the virus as an accommodation to her condition. He relies on daily cleaning. He testified that he is not aware that anyone has acquired COVID-19 from being in the store.”
“The assistant manager is often the only person interacting with customers. There is no translucent shield at the cashier stands, and no ‘sneeze guards’ are used. She does not remain behind the cashier counter but helps customers with the various services available to them in the front part of the store.
“That was the case before the temporary restraining order, and has been the case even more since Mr. Desautels stays primarily in the back. She does not wear a mask,” the judge stated.
The judge did not delve into defense arguments about whether seeking herd immunity would have been a better approach than restricting business operations and society in general in response to the pandemic.
Bucknam argued that state statutes allowing the governor to issue emergency orders violated the separation of powers under the constitution, and gave too much authority to the governor, the judge noted.
Teachout said that the emergency management statute was created by the Vermont Legislature for an emergency like the pandemic and the governor’s orders were updated regularly to reflect changes as the emergency unfolded over the past year.
She cited U.S. Supreme Court precedent in saying that “defendants have not met the burden to show an over-broad, unconstitutional delegation of legislative authority to the governor.”
And Teachout said Desautels and his business is covered by rules developed by the agency under the governor’s executive orders.
“The facts are clear that both the business entity, HNR Desautels LLC, and Mr. Desautels personally were in violation of the ACCD rules on Feb. 18 and 22, 2021, and on other days in which the store was open for business and he was not wearing a face covering over his nose and mouth when in the presence of others,” Teachout wrote.