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Judge: Vermont’s mask mandate is constitutional

A judge ruled against the owner of a former UPS franchise Friday in Vermont’s first legal test of the state mask mandate, ordering him to comply with masking rules if he wants to keep running his store.
The civil decision against Andre “Mike” Desautels — who drew controversy in recent months for his defiance of the state’s mask mandate — came after a several court hearings in the last week.
“Desautels stated clearly at the hearing that his intent is to not wear a mask,” Orleans County Judge Mary Miles Teachout wrote in the decision. “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.”
Until last month, Desautels had run a UPS franchise in Newport. But after months of refusing to comply with Gov. Phil Scott’s executive order requiring business employees who deal with the public to wear face coverings, UPS corporate leaders cut ties with Desautels. The mask mandate was imposed to help combat the spread of COVID-19.
Soon after, Vermont Attorney General TJ Donovan decided to file a civil lawsuit against the business owner, citing repeated attempts to gain his compliance.
The maximum penalty is a fine of up to $1,000 per violation, with each day of noncompliance counting as its own violation.
The court case morphed into a debate about the mandate itself, with defense attorney Deborah Bucknam arguing against the scientific effectiveness of the mask mandate and challenging its constitutionality.
But on all fronts, Teachout shot down the defense arguments.
“Defendants have not met the burden to show an overbroad, unconstitutional delegation of legislative authority to the governor,” the judge wrote.
Teachout wrote that the state’ emergency management statute, a point of contention in the hearings, doesn’t allow the governor to usurp the powers of the Legislature. The defense had argued that it did.
“Rather, its provisions are designed to implement a legislative purpose of effective and flexible management of emergencies for the protection of Vermonters and preservation of life,” she wrote.
The judge agreed with the state’s argument that the emergency management statute supersedes another law, the Administrative Procedure Act. The defense had argued that the mask mandate should have been governed by the procedure act, which sets limits on how policies can be enacted.
The judge also dismissed the defense argument that Desautels, as the business owner, should not be defined as an employee under the mandate.
“If the rules only applied to particular individuals depending on their income tax or other status, the intent and effect of the rules would be seriously diminished and would allow for persons to work and serve customers in close proximity to each other in a manner that would fail to deter person-to-person transmission of the virus,” Teachout wrote.
Possible civil fines for Desautels will be decided at a future court meeting.
After his franchise was pulled, he began operating a printing company out of the storefront — again, without complying with the mask mandate. The decision appears to apply to that business, too.
 
 

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