NEWPORT CITY — Vermont’s mask-wearing mandate went on trial Friday while some other states abandon the idea - in a city where the state’s worst prison outbreak of COVID-19 still rages.
Newport City business owner Andre Desautels of North Troy is fighting a lawsuit by Vermont Attorney General T.J. Donovan ordering him to follow the governor’s emergency order and wear a mask at his Main Street business, formerly known as the UPS Store but now as Derby Port Press.
In a Friday afternoon remote hearing on a preliminary injunction in Orleans Superior Court Civil Division, Desautels name-checked three other businesses in the area where he has seen employees working without masks - pointing a finger at Walmart in Derby and Agway and Maplefields in Newport City.
His resistance to the mandate, including posting a sign on his door saying he and his employee would not wear masks and customers could if they wanted - has taken the fight international, drawing supporters to rally in front of his shop.
But as a consequence, Desautels lost his UPS franchise Feb. 17 because he was violating company policy and he said that cost him nearly all his business. His lease for the Main Street location he operated since 2018 has been terminated, Desautels testified.
Judge Mary Miles Teachout has ordered Desautels to obey the preliminary injunction.
The judge on Friday denied a defense motion to dismiss the state’s case, saying that lawsuit should continue because the state had “produced sufficient evidence on irreparable harm” that might have been caused if the defendant is found to not have followed the state’s emergency orders governing businesses, non-profits and government offices.
He faces fines of up to $1,000 for every day he is in violation.
Desautels, testifying from inside his shuttered store, also said that he didn’t have the right to force his employee Rebecca Bingham to wear a mask because she has a medical condition and didn’t have the right to ask her for a doctor’s note about it.
Bingham testified that she suffers from anxiety. She said she feels claustrophobic when wearing a mask and has panic attacks.
She also said that Desautels had not installed sneeze guards or plastic barriers to protect her from infection from COVID-19. They relied on hand sanitizers and social distancing wherever possible.
Desautels and Bingham said they sometimes were within six feet of customers but only for a few minutes at a time. Customers were not required to wear masks in the store either.
Desautels testified that he has not worn a mask in the store since the governor’s first order was issued in April 2020.
He also said he has not worn a mask in the store since the judge issued the preliminary injunction but he has not waited on customers during that period.
In response to questioning, Desautels was firm. “I will not wear a mask, correct.”
Desautels, an official for local basketball, said he knows how it feels to wear a mask for an hour and a half during a game, and did not feel good afterward. He said he wore a mask then because he was working for the league.
His attorney Deborah Bucknam pursued questions about the language of the governor’s emergency orders, raising the question whether they are not legally binding on Desautels, who is not being paid through the store business and may not be considered an employee.
Desautels said he had no evidence that anyone has become infected with COVID-19 through his store.
Desautels said he has seen employees walking around in Walmart and Maplefields without masks. And he said he knows that Agway was questioned about lack of compliance with governor’s orders.
Vermont epidemiologist Patsy Kelso testified that many infections result from community spread of the virus without knowing who spread it.
She said that Vermont has the lowest percentage of positive cases of all those tested. The governor’s orders “played a significant role” in keeping infection rates down. Consistent mask-wearing contributes to that.
Assistant State’s Attorney Ryan Kane asked Kelso if there would an increase in public risk if employees were no longer required to wear masks.
Kelso said she would expect a “significant risk,” pointing to how many times outbreaks at seniors’ residences or other closed facilities were linked to an employee who was infected in the community.
The state has not been able to trace the source of every outbreak, she said.
Kelso said she could not identify a two-person business like Desautels that caused an infection.
Bucknam asked her about the current outbreak in Northern State Correctional Facility in Newport City, where guards and inmates are required to wear masks.
Kelso said there are other factors that could cause such an outbreak.
Bucknam raised questions about why some businesses, like gyms and restaurants, allow customers to go without masks at times.
The hearing will continue Monday.