The former owner of Newport’s UPS franchise, sued by the state over violating pandemic mask-wearing rules, must now pay $850.
That was the ruling of Orleans County Judge Mary Miles Teachout on Thursday during the final hearing of Vermont’s lone legal challenge to mask requirements enacted during the Covid-19 pandemic.
For months, Andre “Mike” Desautels refused to wear a mask in his store when it was open for business, or require employees to do so, as required by state rules. A sign posted on the storefront advised passersby that employees would not wear masks.
But state lawyers, Desautels and his attorney, Robert Kaplan, agreed to limit the scope of violations to just 17 days in February. Each violation could have resulted in a fine of up to $1,000, with each day of noncompliance counting as its own violation.
“The state believes that this situation is appropriate for some degree of leniency,” state lawyer Rachel Smith told the court Thursday, in asking for a $50 penalty for each of the 17 days.
Teachout appeared to agree that the case wasn’t black and white, but disagreed with Smith that Desautels had acted entirely in bad faith — one of the criteria used in the ruling.
“There certainly was a deliberate violation … but a deliberate violation is not necessarily, depending on the circumstances, bad faith,” the judge said.
She said it was clear that Desautels violated the rules based on “not an entirely unreasonable belief” that it was “questionable” whether the mask rules could have the force of law.
“The defendant was clearly, deliberately testing the validity of both that law and its application,” she said.
But Teachout made clear that Desautels’ actions constituted an injury to the public, despite there being no evidence that his flouting the rules caused anyone to contract Covid-19.
And she said the penalty suggested by Kaplan — $1 per day — wasn’t enough. The defense lawyer had said Desautels was engaged in an act of civil disobedience, invoking Rosa Parks’ stand against racial segregation laws in the 1950s.
“It would not send a strong enough message to the public and to business owners about the necessity of compliance,” Teachout said of the proposed penalty.
The fines should be “meaningful, but not so high that it is harsh or would have the effect of putting out of business a person who raised a legitimate question,” the judge said, before agreeing to the state’s requested figure.
For more than five years, Desautels ran a UPS franchise on Main Street in Newport. But the company cut ties with him in February after he refused to comply with Gov. Phil Scott’s executive order requiring business employees who interact with the public to wear face coverings to help limit the spread of Covid-19.
Attorney General TJ Donovan sued Desautels in civil court soon after, and Desautels shifted to operating a printing business in his storefront. In March, Teachout ruled that Desautels had violated the order and needed to comply to stay in business.
The businessman then asked for a new trial, complaining that his original lawyer, Deborah Bucknam, took actions he never authorized. State lawyers argued that no new trial was warranted, and Teachout agreed.
But in rejecting Desautels’ request, the judge said he and his lawyer could submit additional legal briefs on the issue of separation of powers. Kaplan and Desautels focused their argument on whether the rules were constitutional, calling Scott’s order tyrannical.
