An Anne Arundel Circuit Court judge declined Wednesday to issue a temporary restraining order blocking the countywide mask mandate issued Jan. 7 by the county health officer. This ruling keeps in place the requirement that face coverings be worn in indoor county public areas and crowded outdoor public settings through Jan. 31.
The temporary restraining order would have stopped the county from enforcing the mask mandate for 10 days. But Judge Donna Schaeffer said the plaintiffs will not suffer “immediate, substantial and irreparable harm” between now and Tuesday, when a preliminary injunction hearing is scheduled to take place.
The two plaintiffs listed in the lawsuit are business owners Pasquale Carannante, who owns Bella Napoli Italian Restaurant in Pasadena, and James Zimmerer, the owner of a fitness business in Annapolis.
Carannante said in the lawsuit that his business has suffered because some customers have chosen not to eat in a restaurant when they are required to wear a mask, creating a loss of revenue. The public safety order states that individuals do not have to wear a mask while eating or drinking at restaurants or bars, but should be worn when moving throughout those establishments. He said he and his staff also have trouble hearing customers’ orders when they are unable to see the customers’ lips, sometimes resulting in incorrect orders.
Zimmerer said some of his customers have stayed away from the business, have frozen their accounts or have canceled their accounts, all costing considerable revenue. He said the wearing of masks indoors while exercising is both unhealthy and difficult. According to the public safety order, people do not have to wear a mask if they are “swimming or engaging in other physical activities where the use of a face covering is likely to pose a bona fide safety risk.”
Charles Muskin, the lawyer for the plaintiffs, said the court’s decision does not address the key arguments of the lawsuit.
“The trial on Tuesday will provide the plaintiffs with the opportunity to demonstrate that the unilateral, unlawful and undemocratic action of the health officer continues to cause economic hardship to restaurants and bars in this county, and must be enjoined,” Muskin said in a statement.
Anne Arundel County Executive Steuart Pittman, meanwhile, thanked the court for its ruling.
“Thirty-nine of our residents lost their lives to COVID last week. Keeping this requirement in place for a little longer will help reduce the strains on our hospitals and health care workers, and save the lives of our friends, our neighbors, and our family members,” Pittman said in a statement.
Anne Arundel County Health Officer Dr. Nilesh Kalyanaraman said Tuesday he doesn’t anticipate extending the mask mandate beyond Jan. 31.
Kalyanaraman said the county’s COVID-19 case rate is going down, which was the stated goal of reinstituting the mandate after cases spiked and hospitals became increasingly overwhelmed after the holidays.
As of Wednesday, the county had a daily positivity rate of 95.7 cases per 100,000 people, and that number includes only PCR tests and those who report their positive tests to the county. That compares with a rate of 167.5 per 100,000 on Jan. 7 when the public safety order was issued. The county’s overall positivity rate stands at 20.64%, a notable decrease from the beginning of the month when it was 30.23%, according to the Anne Arundel County Health Department.
Kalyanaraman said Wednesday he is pleased the mask mandate will stay in place for the protection of county residents in the face of the COVID-19 surge.
“Our hospitals are still under a heavy burden and operating under crisis standards of care. We have a duty to decrease the burden on the hospitals so they can properly care for everyone who needs them,” he said.
After the Anne Arundel County Council voted Jan. 7 against allowing Pittman to extend his seven-day mask mandate and state of emergency, Kalyanaraman issued a public safety order under state law extending the mandate to the end of January.
Last week, Republican County Council member Nathan Volke and Republican county executive candidate Herb McMillan reached out to a lawyer about challenging the legality of the health department’s mask mandate order. The lawsuit was filed Friday.
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“Though disappointing, [Wednesday’s] decision does not resolve the underlying issue at stake here: Does the health officer (and, by extension, the Pittman administration) have the legal authority to enter a mask mandate in this circumstance? I look forward to the court’s consideration of that question in the upcoming proceedings,” Volke wrote in a statement.
McMillan said the decision Wednesday was only the first step in the case and that he is ready for it to play out in court.
“Next Tuesday, the plaintiffs have to show some financial damage and they will be able to show that, but if we don’t get a preliminary injunction, a trial for the merits of the case will still be held,” he said. “These decisions by the judge won’t impact our case on the merits, and it is our intention to take this to trial whether the administration extends the mandate or not.”
McMillan said the real issue isn’t whether a mask stops the spread of COVID-19 or if wearing a mask is good or bad, but respect for the democratic process and rule of law.
The state attorney’s general office is defending Kalyanaraman in the case, according to Pittman.
County Attorney Gregory Swain said Kalyanaraman had the authority to issue the mandate under state statute 18-208 subsection B of the general health article of the Maryland Code, which reads, in part: “When a health officer is notified of an infectious or contagious disease within the county, the health officer shall act immediately to prevent the spread of the disease.”
Swain also cited the Maryland Code of Regulations 10.06.01.06, which reads, in part: “The secretary or a health officer shall: Take any action or measure necessary to prevent the spread of communicable disease or to control a reportable disease and condition; and issue, when necessary, special instructions for control of a disease or condition.”