UPDATE: Tri-County Health Department’s mask order was amended to align with Gov. Jared Polis’ statewide order that went into effect July 16. Tri-County Health's order, like the governor’s order, requires people to wear a mask in public spaces and, in addition, requires use of face coverings in outdoor spaces when social distancing cannot be maintained, according to a Tri-County news release.

Apart from that, the key difference between Tri-County's order and the governor’s order is a longer duration of up to 90 days rather than 30 days, the release says. To avoid confusion, Tri-County amended its order to align with the governor’s order on all other aspects. That includes exempting children 10 and younger from wearing a mask.

Those who refuse to wear masks in public could technically face up to a $5,000 fine and up to 18 months in jail once an order by the health agency for Adams, Arapahoe and Douglas counties goes into effect July 24.

But that's the standard maximum penalty set by state law for any violation of a local public health order in general, according to the Tri-County Health Department.

“If enforcement action needed to be taken through legal means, our recommendation to the court would be no more than a $25 fine for a first violation,” said Gary Sky, spokesman for Tri-County.

Tri-County Health on July 8 approved an order by a 5-4 vote to require masks in public indoor spaces and outdoors where people can't remain 6 feet away from others. The order includes a long list of exceptions, including for disabilities and medical or mental health conditions.

More than half the state's population had a mask-wearing requirement in their municipalities and counties by mid-July, including many in the Denver metro area.

Eight days after Tri-County Health's action, Gov. Jared Polis signed an executive order that went into effect July 17 requiring that Coloradans older than 10 wear a face covering in public indoor spaces. That doesn’t include when a person is eating or working out on their own, but it applies in stores, at work and where people congregate, Polis said.

That includes wearing a mask while using or waiting on a taxi, bus, light rail, train, car service, or ride-sharing or similar service, according to the order's text.

Counties and municipalities could opt out of Tri-County's order by July 23, and Douglas County's elected leaders announced plans on July 9 to do so. But the state's order does not allow localities to opt out, at least not now.

Because Tri-County's order differs from the state's in some ways, Tri-County's will remain in effect for municipalities that haven’t opted out in Adams, Arapahoe and Douglas counties. Only areas in Douglas County that are outside of a municipality were to be opted out.

The state's order will apply in those areas, though.

A key difference between the orders is that Tri-County's requires masks outdoors when 6-foot distance from others cannot be maintained. Tri-County's order also lasts longer — up to 90 days rather than 30 days for the state's order, although both orders could be extended.

Picture of enforcement

It's unclear what the penalties would be for those who violate the state's mask order, as Polis' executive action is not a public health order.

"If you refuse to wear a mask as required in the executive order, you are violating a Colorado law and are subject to civil or criminal penalties," a state spokesperson said July 17. "If you try to enter a store without a mask, you may be prosecuted for trespassing."

Tri-County has emphasized it doesn't intend for police action to be its enforcement tool, stressing that the department is “focused on education and voluntary compliance with the masking order,” Sky said.

The state takes a similar stance, said the July 17 statement from the Colorado State Joint Information Center, which includes staff from the Colorado Department of Public Health and Environment.

It's unclear what it would it take for a person to be stopped by police and given a court summons or fine under the order — that will depend on the law enforcement agency in a particular area, said Mellissa Sager, policy and intergovernmental manager for Tri-County.

The state didn't outline what a police enforcement action would take, either. "We are asking people to do the right thing for themselves and for the safety of others. The goal of this is not to punish or prosecute people," the information center's statement said.

And Tri-County officials — and the state — are not recommending arresting individuals based solely on the failure to wear a mask, Sager said.

“Law enforcement action will depend on the individual agency but would likely only occur if another crime is committed,” Sager added.

For both the state's and Tri-County's orders, people do not need a written exemption to show that an exception to the mask requirement applies to them.

But an employer may require documentation from an employee in accordance with state and federal law, Tri-County's order says.

Colorado’s order includes exemptions for individuals "who cannot medically tolerate a face covering," along with exceptions for some other cases, according to the order's text.

Tri-County's order does not require that any child 5 or younger wear a face covering, but in light of the state's order, Tri-County announced it would raise its age of exemption to 10 years to avoid confusion.

Businesses in spotlight

If a person who isn't wearing a mask refuses to leave a business and is therefore trespassing, that is one example where law enforcement action would apply.

“Law enforcement is not expected to respond to reports of face-covering violations unless the call involves trespass, disorderly conduct or other subsequent crime beyond the failure to wear a face covering,” Sky said.

If an individual refuses to wear a mask for reasons not allowed under the order's exceptions, a business or other publicly accessible facility is required to refuse entry to that person, according to Tri-County's mask order.

Any business open to the public that allows a person on its premises without a mask could have its license suspended or revoked, the order says.

Similiarly, businesses may not provide service to people or allow them on their public indoor areas without a mask, according to the state's order. Businesses violating the order will may have business license temporarily suspended.

For businesses, if three or more complaints are received, Tri-County plans to “reach out with educational materials, take questions, chat through the requirements of the order, provide template signage and generally provide resources and education to assist in compliance,” Sky said.

“Sometimes we may need to visit a business in person and sometimes we may be able to provide information and links to resources remotely. Each response will start with a phone call,” Sager said.

Tri-County staff likely won't respond in person to individuals who are not wearing masks, as the department does not have the capacity to carry that out, Sager said.

“However, we encourage people to reach out to TCHD if they are seeing people not wearing their masks in certain areas as we will use this information to target our education campaigns,” Sager said.

Constitutional authority

Since Tri-County voted to issue its order, the move has been criticized as government overreach in public meetings of the Castle Rock Town Council and the Douglas County Board of Commissioners, where officials and local residents weighed in.

On the other hand, some Centennial city officials expressed skepticism that the order would be enforced aggressively enough to make people comply.

Responding to concerns that have been raised about the mask rule's constitutionality, Sky cited the American Bar Association, which says on its website: “Under the U.S. Constitution's 10th Amendment and U.S. Supreme Court decisions over nearly 200 years, state governments have the primary authority to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions.”

Public health agencies are required by Colorado state law to “investigate and abate nuisances when necessary in order to eliminate sources of epidemic or communicable diseases,” according to Sky.

“In the event of a public health emergency, the (local health) agency shall issue orders and adopt rules consistent with the laws and rules of the state as the public health director may deem necessary for the proper exercise of the powers and duties vested in or imposed upon the agency or county or district board,” Sky cited.

The state public-health department and the governor's office, when reached for comment, declined to say what the penalty would be for breaking the statewide mask order.

"There may be a time when a customer (at a business) refuses to wear a mask and refuses to leave, which would set up a trespass situation, a state criminal charge rather than a public health order charge. We hope that law enforcement remains responsive to situations like that to support the businesses in their community just like they did prior to the pandemic," the governor's office said in a statement through Shelby Wieman, a spokeswoman for the office.

It appears that the executive order on masks will not have a public health order issued corresponding to it, the way that some other Colorado executive orders regarding the pandemic have. Executive orders have the force and effect of law, so they do not need a public health order to be enforceable, the state public-health department's statement said.

If Tri-County pursued a violation of its order in court, the court would ultimately decide what the penalty would be, according to Sky, discussing the suggestion of an up to $25 fine for a first violation. He added: “Our recommendation may change for a more egregious violation of the public health order.”