AGs In A Pandemic: Weiser Talks Colo. Health Orders

By Phil Weiser
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Law360 (November 10, 2020, 4:45 PM EST) -- The COVID-19 pandemic has brought new compliance risks and considerations for companies and individuals. In this Expert Analysis series, state attorneys general share their enforcement priorities.

Phil Weiser

The city of Gunnison is a mountain community nestled in a valley just west of the Continental Divide in central Colorado. Known as the base camp of the Rocky Mountains, it is surrounded by breathtaking natural beauty and is a playground for outdoor adventurers to ski, hike, kayak, fish or hunt. Gunnison also has a well-known history of mining and ranching, but what many people do not know is that its past also includes lessons for dealing with a global pandemic.

During the 1918 influenza pandemic, Gunnison relied on a unique strategy to address the crisis — it kept outsiders out and insiders in. This quarantine strategy worked: Gunnison had two reported cases and one death from the flu while the entire state experienced an estimated 7,500 deaths in the initial wave of the pandemic.[1]

The community's success in containing the virus might be because, as one commentator explained, "[i]nstead of face masks and anti-bacterial hand gels, Gunnison relied on the guidance and authority of local newspapers, doctors and police — a trust in institutions that may now seem quaint — and on people's capacity for patience."[2]

In 2020, we are in the midst of another deadly pandemic with COVID-19. This time, however, full-scale quarantine is not a realistic option for highly mobile people living in an increasingly interconnected world. Instead, through data-driven actions, engaged communication with residents and visitors, and legal enforcement, when necessary, Colorado's strategy for addressing the pandemic reflects a tradition of the collaborative problem-solving spirit that Coloradans pride ourselves on.

In Colorado, state and local officials have the authority to enforce rules in a public health emergency. Under Article IV, Section 2 of the state constitution,[3] the Colorado Disaster Emergency Act[4] and other statutory provisions, the governor and the Colorado Department of Public Health and Environment have broad authority to impose certain policies to protect the public health and safety from the spread of communicable diseases like COVID-19.

Exercising this authority, Gov. Jared Polis took early action to curtail transmission of the novel coronavirus, such as closing our ski areas, issuing a stay-at-home order, and declaring some businesses as essential so that they could continue to provide basic goods and services. In hindsight, directing the ski areas to suspend operations and, thereby, stopping thousands of visitors from around the world from flocking to Colorado for spring break was clearly the right decision.

Summit, Eagle, Pitkin and Gunnison counties, where many of the ski resorts are located, were hit hard as COVID-19 took hold in the state. Infection rates were initially much higher in those counties than in Denver and Front Range communities and the measures that the resorts implemented weren't enough to prevent the spread of the coronavirus throughout the region. Shutting down the ski areas significantly curtailed the spread of the virus and helped to conserve medical resources in the mountain communities. Put simply, it saved lives.

Under Colorado law, the state and local health agencies have the authority to issue public health orders to safeguard health and safety. Colorado has a strong local control ethos, so local public health orders can be more restrictive than state orders. These mandatory public health orders include limiting gatherings of people, requiring isolation or quarantine of individuals, or not operating businesses and other establishments to slow the spread of the virus and save lives.

It is unlawful for any person, association or corporation to willfully violate, disobey or disregard the provisions of the public health laws, and violations of public health orders can be enforced either civilly or, in some extreme cases, even criminally.

At the outset of the pandemic, our office recognized that public health order enforcement would become a major priority. We also recognized that judicial enforcement of public health orders needed to take a back seat to moral suasion, education and raising awareness of the reasons why protective measures matter.

To that end, we issued a guidance document to local governments with a road map to enforcing public health orders. This guidance emphasizes local law enforcement and local public health agencies first reaching out to an entity to seek voluntary compliance.

As we recognized, local county attorneys or district attorneys are authorized to bring any civil or criminal action requested by the local public health director for a local violation of the order. In most cases, it will be incumbent on the county attorney representing a local public health agency to seek a judge's order in state court to force an individual or business to immediately comply with the order.

When a local public health agency is unable or unwilling to enforce an order, the attorney general's office, representing the state health department, can step in to seek a judge's order to force an individual or business to immediately comply with the order. The state also has the option to revoke a state license — such as a liquor or restaurant license — of a business that violates a public health order.

Recently, I traveled around the state to talk with local law enforcement about how they were addressing COVID-19 and public health orders. The message our team heard was clear: Our guidance — educate first and only use civil or criminal penalties when necessary — was valuable to law enforcement and provided a blueprint for managing this crisis.

Law enforcement and public health leadership in Gunnison took that guidance seriously and developed clever messaging, emphasizing, for example, that by taking protective measures, "you are supporting the health of our community and economy." Indeed, the local police chief related that he only had to take an enforcement action in a single case.

Gunnison, because of its attractiveness to visitors and limited hospital capacity, also faced a unique issue: whether and how to encourage visitors to stay away during a critical time. As the county honed its policy on this score and faced a threatened lawsuit from the Texas attorney general on behalf of Texans who have second homes in Gunnison, our office collaborated with them to develop a viable solution that passed legal muster.[5]

Obviously, some people in our state have been frustrated with the measures that state and local government have enacted to address COVID-19. In Lawrence v. Colorado, a legal challenge in the U.S. District Court for the District of Colorado, a Colorado resident claimed that public health orders violate his rights under the U.S. Constitution, and he sought a broad preliminary injunction to prohibit the state of Colorado and city and county of Denver from enforcing the orders.

U.S. District Judge Daniel Domenico in that case said the orders, "while onerous and subject to legitimate debate, represent the reasonable judgment of the Governor [and] the Denver Mayor" and that the voters empowered the state and local governments to make such decisions in emergencies.[6]

In fact, time and again — whether it's limiting the size of gatherings or closing bars early — state and federal courts in Colorado have repeatedly upheld the state's authority to enact measures to fight COVID-19.

Compared to other parts of the country, Colorado has had relative success in containing the spread of COVID-19 within our borders, and that is due to early decisive action, our residents' sacrifices and, frankly, a little luck.

The state ranks 40th among states[7] in terms of per capita cases of COVID-19. The state has also achieved this result while managing the impact of the pandemic on our economy, ranking 22nd nationwide in the unemployment rate at 6.4%.[8] This result reflects a tradition of collaborative and creative problem-solving, which has been tested during this crisis. 

In Colorado, we benefit from a spirit of being in it together. During this pandemic, we are seeing the best of that spirit at work, with public health agencies, law enforcement and communities working together. And it is with that spirit and commitment that we will continue to save lives.

Phil Weiser is the attorney general of Colorado.

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.






[6] Lawrence v. Colorado , Order Denying Pl.'s Req. for Preliminary Inj., No. 20-cv-00862-DDD-SKC, 2020 WL 2737811 (D. Colo. Apr. 19, 2020).



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