An embattled former UPS franchisee — whose defiance of the state mask mandate has drawn outrage and vocal support — will soon find out whether he faces fines and other penalties for ignoring the mandate.
Orleans County Judge Mary Miles Teachout plans to issue a written verdict in the civil case, she said at a hearing Tuesday, in the state’s case against Andre “Mike” Desautels. The maximum penalty is a fine of up to $1,000 per violation, with each day of noncompliance counting as its own violation.
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.
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 mask mandate was imposed to help combat the spread of Covid-19. And in her closing argument, state lawyer Rachel Smith said Teachout should rule in the state’s favor because Desautels’ violation of that measure was clear.
“He admitted, in short, that he’s worked in person — interacting with others in person — on hundreds of days without wearing a mask and that he would intend to do so going forward,” Smith said Tuesday in the virtual hearing.
“He admitted that he’s never put up a plastic shield or sneeze guard and that defendants have never taken any steps to implement physical barriers to protect their employees and the public from the spread of Covid-19,” she said.
But defense attorney Deborah Bucknam argued a broader point in response: the scientific effectiveness of the mask mandate, and the constitutionality of the executive order.
“The fact that there is no limitation on what the governor considers an emergency, coupled with the fact that once he declares it, (he) has unlimited authority … that’s fairly draconian,” Bucknam said Tuesday.
“It’s based on the governor’s decision that there is an emergency, and that’s based on one scientist who has, in her testimony, really provided no basis for those conclusions,” she said.
The defense attorney was referring to Patsy Kelso, the top state epidemiologist, who spoke in court Friday and Monday about the public health benefits of mask-wearing.
Bucknam said she doesn’t doubt Kelso’s sincerity and belief in these measures.
“But we are not governed by scientists — we are governed by elected officials and by the rule of law,” Bucknam said. “And to allow people, no matter how sincere, to determine these kinds of very severe restrictions on people’s liberty and freedom just does not comport with our constitution or our constitutional republic.”
On Monday, Bucknam brought in as a witness Aimee Stephenson, who teaches a microbiology class at Community College of Vermont. Despite state challenges of her expertise, Stephenson provided the bulk of the defense’s argument about masks.
“My opinion is that we don’t have evidence that they’re effective at preventing viral transmission, and there’s many reasons to believe why they would be ineffective,” Stephenson said that day.
Stephenson concluded that, in an establishment like Desautels’, with only two unmasked employees, “the chances of transmission are very, very low” and she believed it would be unlikely unless a sick employee sneezed on someone.
Kelso rejected those and other claims by Stephenson, whose credentials were questioned by state lawyers throughout Monday’s hearing.
“It is quite possible for people — even just standing and breathing, potentially not even talking or sneezing or coughing — to exhale (the) virus in droplets that can be spread to people who are nearby,” Kelso said then.
On Tuesday, Bucknam renewed questions about the legitimacy of the state’s response to the pandemic.
At one point, Teachout asked Bucknam if the lawyer was saying the pandemic was not an “all-hazards emergency” — a legal term from Vermont’s emergency management statute.
“That’s part of what my argument is at the present time,” Bucknam said, pointing to recent figures for Covid hospitalizations, including intensive care unit visits. As of Tuesday, 30 people were hospitalized and seven were in an ICU, narrowly up from Bucknam’s figures.
“In an ordinary situation, up to 2020, I don’t believe that anyone would consider that statistic to constitute an all-hazards emergency at any time,” she said, before comparing the numbers to those for flu victims.
The legal definition for an all-hazards emergency includes “health or disease-based” events that pose “a threat or may pose a threat, as determined by the commissioner or designee, to property or public safety in Vermont.”
Bucknam said the governor’s emergency measures were not exempt from another state law, the Administrative Procedure Act, which imposes limits on some actions. But the state argued that the more specific statute — the emergency management law — superseded the more general procedural act.
Teachout said Tuesday that she is “aware of the need for a decision to be timely.” The judge said she planned to issue a written decision on the case, but no court order had come as of Tuesday evening.
Teachout has extended a previous temporary order forbidding Desautels from violating the mask mandate until she issues her final order.
