(Missouri Independent) – In early July, the Columbia City Council passed an ordinance requiring everyone over 10 years old to wear a face mask when in close contact with someone from outside their household.
Since that vote, a requirement for face masks has been in every health order issued for the city of 123,000 by the Columbia-Boone County Department of Public Health and Human Services.
But the mask mandate didn’t extend to the county, because the commissioners never passed a corresponding ordinance.
That changed Tuesday when the Boone County Commission voted 2-1 to require masks in public.
While the state’s urban centers were quick to require masks to combat the spread of COVID-19, most cities and counties around the state have hesitated to follow. The reason, for many, was a mixture of concerns about the political blowback they could face and questions about whether they had the legal authority to issue such an order.
Most are now convinced the legal question has been answered. And with COVID cases rising and hospitals fearing they are reaching a breaking point, the political will is growing as well.
Boone County joined other local jurisdictions, including Franklin County, Joplin, Marshfield, and Clinton in Henry County that have acted since Gov. Mike Parson made clear in a Nov. 19 news conference that he would not change course and issue a statewide mask order.
“What we did in this state is that I truly do support local control and will continue to support the decisions that they make,” Parson said.
Boone County’s deputy director of health, Scott Clardy, said the delay between the city and county ordinance came down to questions of whether an order was needed and whether it would be accepted.
When Columbia acted, Boone County had 513 total COVID-19 infections and two deaths and was averaging 23 new cases per day. And, Clardy said, most of those were within Columbia city limits.
Five days after the ordinance was enacted the average peaked at 43 per day. It then fell as low as 19 per day before University of Missouri students began arriving in August.
Now, the county has recorded 9,611 cases, including 24 deaths, and is averaging 149 new cases every day. And a lot more of those cases — about 40 percent, Clardy said — are outside Columbia, which has about two-thirds of the county’s 180,000 people.
“Absolutely, that is a trend we have been noticing and it is alarming,” Clardy said.
The level of acceptance has also changed in recent weeks, he said. On a conference call with commissioners, health officials, and municipal leaders Monday, Clardy said it became clear there has been a shift in the past 30 days.
“What we are seeing with the disease spread is how quickly that is happening,” Clardy said, “and if we went about it on a patchwork basis it is going to be much more difficult.”
The rate of new cases has been accelerating in Missouri since mid-June, going from an average of 204 per day on June 14 to 4,254 per day on Tuesday.
The earliest mask mandates in Missouri were put in place by Jackson County, St. Louis, and St. Louis County. And a study by St. Louis University showed that infection rates in St. Louis and St. Louis County have been well below that of surrounding areas in the period since they were put in place.
Some counties, like St. Francois, enacted mask ordinances but then revised them or allowed them to lapse in the face of public opposition and splits among public officials.
Health officials have tried, to no avail, to push numerous arguments in the hope of convincing Parson to issue a statewide order. Among them is the idea of offering political cover for local officials who want to enact a mask requirement but fear a public backlash if they do.
“I do believe that it is safer to move kind of when the herd moves,” Jon Doolittle, CEO of the Mosaic Medical Center in Albany, said in a conference call with Parson on Oct. 29.
Missouri is one of only 13 states without a statewide mask order.
Legal Authority
When the Pettis County Health Center Board of Trustees approved a mask mandate on Aug. 5, it was soon challenged in a lawsuit alleging the board had overstepped its authority.
Stanley Cox, a former Republican state representative and the attorney who filed the lawsuit argued in court filings that the mandate was void because it had not been approved by the Pettis County Commission. He also told the courts that because it did not get a majority of votes from the five-member health centerboard, it should be overturned.
On Nov. 9, Cox dropped the lawsuit, which did not actually challenge whether authority exists in state law and regulation for the mandate. Challenging it directly would have been too daunting, he said.
“The only basis you could prove that an ordinance of the county commission was invalid was that it was unreasonable,” Cox said.
He said he dropped the litigation because the enforcement provisions don’t specify any penalty for failure to obey it.
There is no doubt that the coronavirus that causes COVID-19 is spreading rapidly in control in Pettis County. On Aug. 5, when the board voted, there were 454 cases, including three deaths, in the county, and by the end of the month, there were 797 and eight deaths.
On Tuesday, the state health department reported there have been 2,590 cases, including 32 deaths.
The authority for county health agencies to enact regulations and ordinances to control infectious disease is clear, said JoAnn Martin, Pettis County Health Center administrator.
“It is not something that has never been done before,” she said.
The authority is spelled out in the statutes and state regulations, Martin said.
It can be found in the section allowing health centers or county commissions to enact health ordinances that do not conflict with state Department of Health and Senior Services regulations.
The provisions of that section were first enacted in 1901, soon after the state Board of Health was established. It has survived virtually unchanged, except for a 2019 amendment that took away local authority to write health regulations applying to agricultural operations.
Boone County didn’t delay a mask order because of questions about authority, Clardy said.
“I don’t think the issue has ever been due to a lack of authority,” he said. “Our question was did we feel it was necessary and would it work.”
The authority for cities to enact ordinances to prevent the spread of contagious disease is even older. In language dating to the 1830s, even villages, the smallest incorporated places, have the power to pass ordinances to “prevent the introduction and spreading of contagious diseases.”
Columbia, St. Louis, and Kansas City, as charter cities, can do anything not prohibited by state law. Other cities, like counties, only have authority granted by lawmakers.
Clinton in Henry County, a third-class city, has the same power described in the same language as villages plus authority to enforce quarantine within five miles of city limits. The ordinance passed Monday includes a fine of up to $100 for violations.
Whether Henry County will act to extend the ordinance countywide is an open question, Presiding Commissioner Jim Stone said.
“We are in the process of visiting with some of the other towns, to see what their thoughts are,” he said.
Although cases have more than doubled in the county of 22,000 this month, from 444 on Oct. 31 to 1,020 on Tuesday, Stone said he doesn’t think the idea will be popular.
“We have some smaller towns and it can get a little touchy,” he said.
Enforcement
The Columbia and Boone County mask ordinances include fines of $15 for individuals who violate it and $100 for businesses. Those are the same fines set by Franklin County, while Clinton set its fine at $100 for any violation.
But in the almost five months since it was enacted, there have been no citations issued for a simple mask violation in Columbia, Clardy said. And while businesses have been closed for a few days after multiple violations, there have been no citations to businesses, either.
One of the problems, he said, is how heavy-handed to be. The Columbia ordinance, like most mask mandates, includes an exemption for people who have a medical condition that would be aggravated by a mask.
“We never did expect any individual to carry proof of their exemption,” he said.
And that makes enforcement by citation difficult, he said.
“We have gotten several complaints about the same business and that none of the employees were wearing masks,” he said. “We were told that all the employees have an exemption. That is highly coincidental and there is nothing much more we can do with it.”
Stone, in Henry County, said that enforcement could be difficult and he doesn’t want to pass a law that can’t be enforced fairly and evenly.
“We haven’t got enough deputies,” he said.
The Pettis County order doesn’t spell out a specific fine but refers to prosecution under state law for a violation. Martin said she would prefer for Parson to issue a state order because changing rules from county to county and city to city can be confusing.
“I think it makes it challenging when we do things county by county because we have a number of people who work in one county, live in another county, and may shop or get health care in another county,” Martin said.
Enforcement will be complaint-driven, she added.
“We have no intention,” she said, “of ever having a deputy or anyone else standing in front of a business and cite people for not wearing a mask.”
(Photo by Mika Baumeister on Unsplash)
