By Evelyn Pyburn

A new law has been passed by the state legislature which prohibits local governments from requiring business owners to act as an extended arm of law enforcement, when ordinances or regulations are too unwieldy for policing and to force compliance through normal law enforcement.

HB-257 was sponsored by Jedediah Hinkle  (R) HD 67. The legislation basically says that municipalities or counties may not compel a private business to deny customers goods or services, nor may local governments take retroactive action against a business for not turning away their customers. 

In introducing his bill to the House, Hinkle said, “…In Gallatin County we have had some of the strictest ordinances” with a devastating impact on business…” many have closed and others are barely hanging on.” He noted that one “hallmark eatery” in Bozeman has closed forever after 35 years in business.

The approach used by health departments across the state, Hinkle likened to “a death by a thousand cuts.” Health departments commandeer private resources to enforce ordinances. Public officials expect that “through fear, threats of revocation of licenses, fines, charges, misdemeanor violations and lawsuits,” business owners will coerce customers and their staffs into compliance. “They use their own tax dollars against them to destroy them in courts,” said Hinkle. The businesses “are damned if they do and damned if they don’t.”

Hinkle likened the practice of requiring businesses to act as an arm of law enforcement to a takings – when government confiscates without just compensation.

One businessman, Randy Chamberlin,

explained to law makers, “We have to walk a fine line…while employees and customers need to feel safe and confident… we can alienate one side or another.”

“I believe it is totally unfair to make businesses be the enforcement

arm of any government policy, ordinance or regulation,” he proclaimed, “Business people should not be subject or penalized if we do not enforce these ordinances and policies that are being put on us.” The situation creates an unfair situation among businesses, he said, because while some “trying to be good citizens and honestly follow the law” are put at a disadvantage to those who “wouldn’t necessarily do that.

Mike Hope, owner of the Rocking R Bar

 in Bozeman, said he got sued by the county because he refused to close his business at 10 pm. Up until then he said that he and his staff had done everything they could to comply with the mandates. He said he was proud of the extent his staff went to, to make sure everyone was safe. Having to close at 10 pm meant his business would not be able to make enough money to keep his staff employed … “it was about my employees and my industry and what it has done to people around us.” Hope said his business is  facing $40,000 in legal costs. “That is probably a month’s worth of wages for four or five employees.”

He said that he is fortunate in that he has been in business long enough that it had the capital to withstand the financial blow, but most businesses would not be able survive a lawsuit. The Rocking R Bar has been in business since 1947 and Hope has owned it since 2000.

His small business confronted “the whole weight of the state government, because all their expert witnesses were … Montana State employees. .. the county attorney had three attorneys working on it… I had one attorney….”

“What is happening to me is what is the fear of my fellow constituents within my industry. They are afraid. And when government operates from a position of fear …that is not a good position ….This was like a sledge hammer that came down on us.”

“I just think we carried this too far. … If I have respect for the person that doesn’t agree with me and I respect the person that does agree with me, that is how we are going to get through this. ..the  market place is going to drive us to make good decisions . ..because if we don’t take care of our customers and our guests we aren’t going to be in business very long.”

“My property taxes paid the salary of the people that were suing me. I didn’t sue them, they sued me. And the reason they chose to sue me … I was told.. is they could fine me criminally but they couldn’t shut me down. The only way they felt they could shut me down was to sue me. .. When we give up our freedoms , we have to really ask ourselves where we want to live and what we want to be. As a business owner I am 100 percent committed to our community … I am only as good as my community so if I am killing off my community, I am not going to last in business. I think we need to put faith in people to make decisions, not unelected bureaucrats, quite honestly.”

“What I really like is that this bill takes away the ability to sue. Most people don’t have the resources to go and make this fight. That is not a fair fight.” Regarding the health department, he said, “They had all the authority in the world and they used it … it needs to be taken away from them.”

Hope also explained it was difficult getting an attorney, because they too are afraid of the power of the government. “I reached out to four different attorneys before I could get one to agree because they were afraid to take the case because of the retribution they would get. That’s scary. Two days before our court hearing, our two expert witnesses backed out because they were afraid of retribution …We were scrambling. We got expert witnesses lined up now, who have a little more back bone, but that is the type of fear that we are up against. That is not what this country is built on.”

Sarah Capp, also a resident of Gallatin County, talked about the impact on her family as customers trying to navigate their way through local businesses who were intimidated into bullying her and her children, two of whom who have hearing impairments. She said that her nine year old, Liam, has a significant hearing loss. But “ …he is an expert lip reader so you can imagine how the last six months have been on him….each day over the last six months has been a battle for our family, a battle that pits us as paying customers against store employees, managers, business owners, restaurant servers and even medical professionals … It has forced me to explain more times than I can count, ‘our family doesn’t wear masks for the sake and safety of our son… who has a hearing loss.”

This they had to do all the time even though Governor Bullock’s mandate specifically said that those who were exempt from wearing masks should not be asked why they were exempt. “You would be amazed at how many people don’t know that and aren’t aware of that medical exemption. Just imagine as a nine- year- old, and you have a medical exemption that has to be pointed out and explained in front of your face over and over again.”

Capp said, “Many employees have been gracious, many employees have rolled their eyes and sneered at us as though we were lying. And a few even denied our medical exemption and asked us to leave.”

“The mask mandates and business restrictions we have in place today are nothing more than wishful thinking of power-hungry county health officials,  many of which don’t have a bit of health education. As an animal science degree major I have more micro biology and chemistry experience than many of the people who sit on county health boards making these rules,” said Capp.

Doug White is a third generation business owner in Flathead County. He said, “Our small business has the highest traffic count in a small area of any business in our area…we serve 800 to 1600 customers a day, through a 2000 square foot store with a single entrance /exit door, making it virtually impossible to comply with COVID -19.”

He said, “Many businesses in our area have been temporarily closed due to their employees testing positive for COVID 19 – and we are just the opposite. But,  still we have been labeled as an egregious offender…in mid-July the health department called and stated that they had three complaints about our failure to enforce the mask mandate.  As for the health board’s rules we got a phone call after the three complaints as we are supposed to.” But the rules say that a business should get another phone call after ten additional complaints and a follow up visit. “None of this ever happened,” said White, “until the phone calls from the media came, making us aware of the state’s intent to sue …”

“I was contacted on my personal cell phone at  9:30 am by the Flathead Beacon asking me for comments and thoughts about being sued by the Bullock administration  They were aware of this suit eight hours before we were even process served. Fortunately for us the lawsuit was eventually dropped, however it cost us more in legal defenses.”

During the course of trying to be the enforcement arm of the state….  one of my employees was threatened by a customer with a side arm, when he asked the patron to please put on a mask. This young man quit as our employee the very next day, stating that he just couldn’t do what we asked  him to do in enforcing this mandate. He has yet to be replaced.

“Additionally my granddaughter received a profanity –laced slur from a disgruntled patron when she asked them to put on a mask. … as you can see … it is literally dangerous to our employees to be the enforcers of these mandates. They neither have the proper training or know-how to deescalate a situation that may arise.  Also, a private business should not be forced to expend its own financial resources to enforce the mandates of these governmental entities, as you can see  even with our efforts to comply we were still sued.”

Maria Wyrock, Bozeman,

testified, “Our county health board has caused us a lot of stress and undo harm. They have become  one of the most feared agencies acting on their own agenda that simply go beyond promoting health. 

Wyrock said that she was part of a public records request from the Gallatin County Health Board regarding the Governor’s mask mandate. While the agency refused to turn over the records and the county attorney “stonewalled,” they were able to obtain the records through a lawsuit that subpoenaed for the information. “A committee is still going through thousands of emails and text messages,” said Wyrock, “but the overall theme uncovered is how the department is not following the same rules they have laid out for Montana. They are complicit in denying people with disability and medical conditions access to private  businesses while they are aware it violates the Americans with Disabilities Act and the governor’s exemption in the directive.”

An exchange discovered in the missives, “even more shocking,” underscores why HS 257 is “imperative,” Wyrock continued.  Missoula County Commissioners  said that they think masks should be mandated and enforced. “The County Health Officer said she didn’t want to go there” so the county commissioners “instructed their emergency manager to research ways the commissioners can do it without the health officer.”

“This message is a prime example of the county getting involved to pass ordinances that mandate… a level of enforcement that goes beyond the health board and the health officer.”

“Our Gallatin County Health Board and health department created orders and mandates that they knew were not enforceable on a regular citizen. Even our county sheriff has gone on record and states his office will not enforce these mandates. Instead the department crafted ways that ensure that businesses would become the enforcers , however the same businesses are not getting protection from the police or from the sheriff and especially not from the county attorney  to defend their ability to stay open and their ability to access paying customers.”

Brooke Carlson, Choteau,

said that she too had submitted a public records request last summer and began suffering retaliation from the health department. “I was harassed at my job because of my medical exemption and then slandered and shamed publically on social media by those same health officials. I quit my job after the owner grew tired of the harassment by the health department and because of fear they would fine her for honoring my exemption.”

Carlson further stated, “Those same officials attempted to remove my young children from public schools due to their medical exemption, even though the school accepted it. Our only local grocery store was notified by health officials to discriminate against those with medical exemptions, and so they started calling the police to enforce it. I now have to drive an hour to buy my groceries to feed my family at big box stores that aren’t as fearful of health department harassment. Other small businesses in town, many who survive on the revenue from tourists, were harassed by health department officials and intimidated into denying service to the same community members that were capable of sustaining their businesses with their loyalty.

“These two health department officials used that same harassment technique to photograph unmasked families, particularly those with businesses or jobs at stake, in an attempt to scare them into compliance.  These same officials then turned neighbor against neighbor, stating on the department Facebook page that those who are unmasked are purposely spreading the virus and even went as far as to contact local TV news saying that anyone claiming a medical exemption is just making an excuse.

“I have seen firsthand the effect of giving the health department the power to force individuals and businesses into compliance. They have burned every bridge and caused every small business to exist in constant fear that they will get turned in for non-compliance and literally turn neighbor against neighbor because of fear of fines. I cannot work in my town nor buy food for my three small children. Businesses are losing revenue and local support because of threats from the health department and this is money and support they will never earn back.”

Carlson said she spoke with county commissioners –and  “after six month of no response from them … I walked into their office that morning and discovered that the commissioners were only not active on the health department board but they did not know that by law one of them was required to be on the board. They showed up to their first meeting the next day… they were not given the opportunity to vote because the director of the health department also did not know that they were on the board . This means that not only is the county health department harassing private businesses, schools, individuals, violating open meetings laws, they are acting without voting members participation. This also means that those two women who have been harassing our town …have also been spending all the CARES Act money without any board approval.”

Darin Gaub, Helena,

said that he is completely disabled because of breathing problems and has been denied access to private businesses and goods and services by local health officers. “This bill is much needed to curb systemic discrimination that only began once the health department got heavy-handed after masks were made mandatory and not voluntary.” He further said  his wife, who has a business in which she tutors children with special needs, had to resign her position because she could not wear a mask for more than 30 minutes.

Esther Fishbaugh

operates 39 campgrounds in Montana and Wyoming. They dealt with 165,000 people last year and have 40 employees, she said, and they had no employees  contracted COVID 19. “We did lose employees because they were fearful.”

“I wrote compliance plans over and over and over again,” she said, “as all the directives were changed on us. So it was quite a bit of work to comply with ever changing rules… It was hard for us to hire extra employees to meet that demand…  We just could not get the extra help. .. I lost employees from coming back. They were fearful for their health. They were over-worked…  Supplies were interrupted because of the fear that was out there. .. perpetuated by many of our health departments, which… over-hyped.”  Fishbaugh said that instead of being helpful, “our health department is being adversarial and punitive… instead of collaborative…. instead of looking for ways to minimize how many people had to be quarantined…. how many people had to be shut down.”

Nellie Nicol with the Freedom Protection Project

explained that the organization was  created because of the health departments’ “overbearing and unconstitutional mandates thrust upon small businesses.”  She said, “We do not believe the health board should be issuing fines or threatening the revocation of licenses for noncompliance of these mandates .  Many businesses particularly restaurants run on a thin margin. Imposing fines just adds insult to injury during a time many people are trying to feed their families and pay their mortgages. In times of emergencies most businesses cannot afford to hire an attorney to fight a misdemeanor charge or any other retribution the health board sees fit. Fighting criminal charges just adds to the emotional and financial stress of an already highly stressful situation.  These business owners are already losing sleep at night worrying about keeping their employees’ and their families fed with a roof over their heads. These mandates are dividing our communities.”

Nicol continued, “In one instance a small town created a tattle tale line, so that locals could take videos of business owners not enforcing mandates and turn it into the officials. The tattle tale line went as far as to make a list of Republican business owners in town This tattle tale line resulted in businesses being threatened to be fined and fear of closure. In the meantime, business owners are forced to police their customers out of fear that they will be shut down. The business owner and their employees safety is compromised while policing their customers, as you are aware not every customer is willing or able to comply with some of the mandates, putting the business and customer at odds. These mandates force the business to decide whether they should comply with the mandate and turn a non-compliant customer away, or keep their doors open.”

Don Frye owns the Hot Rod Filling Station

in Bozeman. He is a second generation owner of two 50-year restaurant businesses. “I hope to pass these businesses on to my children and keep this legacy alive if the health department and the county board of health do not completely crush the independent bar and restaurant industry.  It is for the future generations that we are here for today, to make sure they do not have to navigate the same path for the next virus or pandemic.

“I have experienced the inconsistent and arbitrary power of the Gallatin County Board of Health at a sickening level this past year. I am forced to turn away 50 percent of my regular customer base and to run business at break even or less. “

Frye said, “In short our local board of health has lightened their work by forcing small businesses to enforce their arbitrary and inconsistent rules.”

Jackie Wahl

is the mother-in-law of a fallen deputy, Jake Almond Jr. She talked about having to cancel a fundraiser softball tournament for his family, “even though we made every concession to comply with safety measures. … They decided to cancel it, but keep in mind that regular softball season went on all year long, with no problem at all, with a lot more teams.”  

Andrew Cetraro

spoke on behalf of the Gallatin County Licensed Beverage Association, which has over 200 members. “Many times these licenses are a huge investment. …they can pay upwards of a million dollars,” said Cetraro, “This bill gives us the protection needed to pay for our investments and daily costs and mortgages.”

Charlotte Snyder

also said that she doesn’t believe the health board should be able to compel a private business to deny a customer entrance to their business or access to the goods and services, which they provide . “In many cases by denying a customer those goods and services they are denying the public access to basic human necessities. The local boards have erroneously turned  business owners into enforcement arms of the government. When you deny a business the ability to sell a good or service to a customer you are robbing that business of the ability to provide financial stability to their employees, themselves and their families.

“A local small business told me that they were reported for the lack of enforcement of the mask mandate. The health department actually told this business owner they need to have someone at the door opening it and telling the people to wear a mask. They are a small business! They certainly cannot afford to hire a person to open a door. These people, enforcing these mandates, do not have to worry about losing their jobs, yet they are the ones telling small businesses to hire people to open doors.  This is beyond ludicrous .. .the health department clearly has no concept on how private businesses operate and survive.”

Dax Cetraro , owner of the Rialto Bar in Helena,

said “COVID 19 has had devastating impact on our small business. We have had to lay off a good portion of our work force … and up until the 10 pm closing we were barely breaking even and we were able to pay the bills. If it wasn’t for the PPP we would have been out of business a long time ago.” But, he continued, “when they kicked us down to 10 pm, 60 percent of our revenue disappeared. So we have been unable to hire more people.

“If I were in the Rocking R’s situation, I would be crushed. Out of business for good. The Rialto has been around in Helena since the 1930s. That would be a tragic thing to be put out of business because of litigation against something like that … All we want to do as small business people is work. I don’t want the handouts. I don’t want the PPP money. I want to make a living, allow my staff to make a living, earn tips and take care of our guests .. the most horrifying thing in this whole epidemic is this power the boards of health have right now. I am more worried about that than COVID 19.

Franz Glaus, Four Corners

 near Bozeman, said, “We are speaking about the abuse of power. .. the list is long of those who were seriously compromised last year. … We have seen where some Orwellian shared values are ginned up and introduced and rise above the Constitution… in Hunger Games fashion we are muzzled before the community. We are quarantined for Grandma. Our business is decreed non-essential for the greater good. The aged die alone to flatten the curve. This bill 257 and others like it .. are the tools and materials we wish to use to fix some leaks in the roof of state, that shelters us from the occasional deluge of petty tyrants.”

Ken Miller, Laurel, 

testified that as a business owner and property owner with tenants he and his wife have been greatly affected. “We have learned a lot,” he said, “but in most cases most of these things have caused more harm than good… the bottom line is the free enterprise is always the best approach to handle the concerns.”

Raven Dighans

 had only opened her business in December 2019. “We were hopeful…we  continued to adjust our practices so our customers would feel safe .. but then mandates started to come down …with those mandates came a distinct fear that if we as private business owners did not enforce the rules being dictated by the health department there would be retributive action taken against us. I distinctly remember lying awake in my bed at night fretting how we could possibly recover financially if our license was removed or if we received a huge fine or were sued because somebody walked through our door without a mask. The mandates … pitted neighbor against neighbor and incited a witch hunt for businesses  Not only has my business been reported to the health department three times because the wording on our required signage did not dictate the local mandate, letter for letter, I have also been visited by our County COVID Inspector. Yes, that is a thing, if you are not familiar.  Upon entrance into my shop, without identifying herself, the COVID Inspector demanded to know if everyone in the room was from the same family. With that the very few customers that I had had for the day, left.

“This particular representative of the county continued on to inspect me to make sure I was following … not the health regulations that determine the continuation of my license but instead the COVID guidelines dictated by the county health department .

“In speaking with other private business owners who received the same kind of inspection from the county inspector, it became increasingly clear that we all felt that these visits were designed to undermine us as private business owners and to drive home the idea of the seriousness of the retributive action that could take place if we do not concede to and enforce the county mandates.”

Carolyn Truscott

said,  “In my opinion taking steps to limit contact between people is too broad to be comfortable with …limiting contact between people is impossible to implement without a police state and oppression of our right to assemble  How far would local health officers go to limit contact requiring masks , six foot distancing, shorter business hours and reduce business capacity? We see how all of those steps to limit contact backfired and killed businesses and those steps restricted our ability to patronize these businesses.” She called it an “over reaction to a virus”… “as if it were a nuclear meltdown. We can’t cry wolf every time the common cold or flu comes to town.”

Conrad Everetts

represented a campground called Mountain Bike City, west of Helena, said that if HB257 didn’t pass “We are not opening this year.” He said the county’s deference to health officers is based  on three “false premises”: 1.) government health experts are a not political. 2.) that government health experts are competent. 3.) that government health experts are benevolent.  “We spent the last year out-sourcing our politics and allowing our livelihoods to be destroyed by bureaucrats who heretofore were trusted mainly with insuring refrigerators  and tap water were a certain temperature …”

Cindi Hamilton

said, “I am here as a previous business owner. Our business was completely destroyed by the egos of local government agencies. We probably spent a $100,000 trying to save the business but we were not able to. .. I used to support local government. At this point local government has become a power drunk tyranny. What is going on is destroying our lives. Government is supposed to make our lives better.”

Heather Richards of Gallatin County said that life has been “like prison… it is stressful.. we are not thinking about what is happing to the future of our children. We are being muzzled. Our identity is being taken away.” She relayed that “there have been countless times in stores that I have been harassed by total strangers ..  we are being forced by unelected bureaucrats to do things that should not be happening…  I have so much anxiety going into a store today that I have had to take my money away from Montana to shop on- line because I’m fearful of going out in my own town …where I have been for 25 years – How did we get here?”

Gabe Lynn Johnson, Great Falls,

spoke that ”we have lost our freedom. She quoted a holocaust survivor who said that “memories are not the key to the past but to the future.”

Barbara Friend told about what happened when she asked some teenagers at a public pool why they were taking her temperature and that of her children. She was in the pool with her children when a policeman arrived and pulled her out of the pool to question her after the pool workers reported her. She said, “All this ‘ratting out’ has made little teenagers into brown shirts.”

Her statement elicited a response from a legislator on the committee who was indignant, explaining that “brown shirts” were Nazi storm troopers” and “it is wholly unacceptable to throw around insults like that.”

Bryan Miller, Flathead County,

 told a similar story about taking his three children to swim lessons. He said he had an exemption from wearing a mask. The police came, took him into custody and took him to jail. His wife had to come to retrieve the children and bail him out of jail.

Cheryl Tuscan commented that the issue of mandates “have been very divisive and have torn the fabric of our society.” She was astonished about “snitch lines” made available for people to report non-compliance, and of the “undercover health department employees” visiting bars and restaurants to  monitor obedience. “Businesses are afraid… and customers are afraid. We should be able to make informed decisions and NEVER, EVER TOLERATE censorship of the medical community.”

Donna Elford, Helena,

 brought a petition with 69 signatures. She reported that “because of the over reach of the health department the oldest farm market in the state has been destroyed. . . little mom and pops,  little farmers who brought produce were forced to do the mask mandate when there wasn’t even a mandate and so they killed the market.”

Eileen Guthrie said, “No health board or government  should require a business to discriminate. Last Saturday I went to a local store, when I walked in the clerk asked me about a mask …I said no. Privacy laws say they are not to ask you about all your health background… I proceeded through the store. A large man, very tall, came up to me and said I needed to wear a mask . I said no. I proceeded through the store. He came up to me again to make sure I understood that without a mask they would not sell me anything. I said that was fine I was checking prices… As I went through the store he came to me a third time to make sure I knew he would not sell me anything if I did not wear a mask. The store was not crowded. There were no lines at the checkout. There was plenty of room for distancing. It was clear discrimination  and I am guessing it is fear of the health boards that these private employees felt necessary to discriminate against me.

Opponents to the legislation who testified were considerably fewer and tended to represent entities of government or their professional organizations. They voiced concern that HB257 went too far in that it seems to allow businesses to ignore the specific regulations governing how they operate. They seemed not to understand that the issue was about business people being required to police the compliance of others. No opponent addressed that issue nor did they attempt to explain  reports of aggressive and abusive actions of those from government agencies. They had no explanations nor apologies.

Jim Murphy with the Montana Department of Public Health and Human Services testified that he believed the legislation will lead to confusion. He also said, “The bill limits the ability to take action against some of the businesses that they may regulate. Some of the regulation is very broad . .. and very little action could be taken to address a very valid health concern. .. it may lead to many unintended  consequences.”

Tim Burton, Executive Director for the Montana League of Cities and Towns, and Kelly Lynch, also with the organization, said that they represent 127 municipalities in Montana and urged for postponing action. Burton said, “I don’t think now is the time to re-invent our public health system in the middle of a pandemic.” He said that he understands the economic impact, but the status quo should remain until after it ends, when they can have “an after disaster assessment. Where we can sit down and thoroughly review what worked and what didn’t work and what is a better practice.”

Emily Coyle with the Montana Association of Health Care Purchasers, said “We are concerned with the potential negative unintended consequences of HB257. She said they are opposed to any changes in the state that could hamper our health and recovery …now is not the time to make such drastic changes. It would over burden local boards and governing bodies.

Lance Richards was an opponent who called in to say that individuals have a responsibility to others. He said, “I believe this isn’t the last of it..you have a responsibility  and obligation to oppose the passage of this bill for future generations.”

Michael Biggins, Seeley Lake,

 said it was good to be able to “pursue action against these businesses” and see them fall into compliance and “make life safer for everyone.”

Hinkle said that he would make an amendment that would make clear that the intent of the legislation is