Some Arapahoe County officials 'concerned with constitutionality' of mask order

But county still plans to comply with order from Tri-County Health

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After a local public health agency voted 5-4 in favor of an order requiring mask-wearing in public places in Adams, Arapahoe and Douglas counties, some members of the governing body of Arapahoe County called into question the constitutionality of the order.

While some on Arapahoe's board of county commissioners have concerns with the "constitutionality of this public health order, Arapahoe County will continue to promote and support sound practices around all aspects of COVID-19 prevention, including frequent hand washing and social distancing,” the board said in a July 8 statement.

"I had a concern about the constitutionality of the Tri-County Board of Health making this decision based on the fact that they decided this order without allowing public comments, and because they are unelected, appointed members with no term limits," Commissioner Jeff Baker said through a spokesman.

Commissioner Kathleen Conti said she has heard from constituents who have concerns about the constitutionality of the mask mandate, as well as from those who have health concerns and are worried that they will be ostracized if they don’t wear a mask.

Despite the concerns, the county plans to comply with the order “as well as we can,” said Luc Hatlestad, a county spokesman. Commissioners make up the governing body of a county, somewhat similar to city councils.

The Tri-County Health Department Board of Health voted in favor of issuing the order at a July 8 online meeting. The order was still being drafted, and it's not yet clear when it will go into effect, according to a Tri-County news release.

It will expire on or before 90 days from its implementation date, but it could be amended, extended or rescinded by Tri-County Health's executive director.

The order will allow any municipality or county in Tri-County's jurisdiction to opt out of the mask requirement, according to the release. The Arapahoe commissioners' statement said the order will apply in indoor settings.

Similar mask orders are in place in locations across the country and the state as well as in a number of Front Range locations: Boulder, Denver and Larimer counties and the cities of Westminster, Northglenn, Englewood and Fort Collins, according to Tri-County's release. Tri-County's order could be rescinded if transmission concerns lessen, the release said.

The mask mandate comes on the heels of rising rates of COVID-19 in Arapahoe, Douglas and especially Adams, similar to the pattern in Colorado as a whole, according to the release.

“Based on growing evidence of the benefit of face masks in preventing transmission of COVID-19, especially from persons without symptoms, and evidence of the benefit of mandates from other jurisdictions, (Tri-County) believes that a mask mandate can increase usage and thereby help slow the spread of COVID-19,” the health department said in the release.

John Douglas, Tri-County's executive director, framed the mandate as a positive step in the effort to return life to normal.

“Wearing masks is an easy and effective way to protect your fellow neighbor — as well as your family and yourself — from the virus,” Douglas said in the release. “It is also a positive solution for keeping businesses open and helping the economy, as well as giving our schools a better chance to fully re-open next month.”

In their statement, the Arapahoe commissioners said that “the best available data supports mask-wearing as a necessary step in fighting the spread of COVID-19.”

“Approximately 80% of Arapahoe County residents already comply with the state's masking guidelines and should be commended for taking personal responsibility for keeping our communities safe,” the statement continued.

Tri-County posts data online about how many people wear masks in public in its jurisdiction.

"The entrances of businesses in each county are assessed on approximately a 30-minute interval by observing the public entering the store and noting the number of patrons who are wearing a mask," Tri-County's website says.

Update: The board of county commissioners' initial statement said the board held concerns with the constitutionality of Tri-County's order. A county spokesman later clarified that only some commissioners held those concerns.

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