For the second time since its formation in September, the Douglas County board of health is being sued over its mask exemption rule.

That public health rule — approved by the board Oct. 8 — says that anyone can opt themselves and their children out of mask requirements in the county.

The order was first challenged by the Douglas County School District and is now being disputed in a lawsuit filed by two Douglas County businesses: the Parker Montessori School and a Castle Pines hair salon.

The civil lawsuit, filed Jan. 6 in Douglas County District Court, argues that both the order and the entire Douglas County Health Department are unlawful and asks the court to agree.

"All we're doing really is trying to hold Douglas County to the law," said Igor Raykin,  from Kishinevsky & Raykin, the law firm that filed the document.

In the lawsuit, Anitha Harshan, the director of Parker Montessori, and Becky Henderson, the owner of Curl Up N Dye hair salon, allege that the Douglas County Health Department “was not lawfully constituted” because the county did not “provide the statutorily required one-year written notice" before withdrawing from the Tri-County Health Department.

The county has argued that the one-year notice they sent to Tri-County in July 2020 but rescinded soon after was revived when the health agency went back on their agreed terms. 

Raykin said this was "a ridiculous argument," in an interview with Colorado Community Media.

In a statement released through a spokesperson, the chair of the health department’s board, Doug Benevento, said the department had not yet been served with the new lawsuit.

“If we are served we will vigorously defend the process the county followed to establish a health department and its issuance of a public health order related to masking,” according to the statement. “Our county health department is recognized by the State of Colorado and is providing COVID-19 services in Douglas County.”

He also said the board stands by its public health order, saying the order is “consistent with our mission to protect public health and the state's decision to lift its mask mandate.”

Raykin said his office plans to serve the county with the lawsuit this week and will then seek a preliminary injunction from a judge.

Both businesses suing the health department wish to require masks in their facilities, according to the lawsuit.

“To protect the employees, staff, children and visitors to Parker Montessori from COVID-19, Plaintiff Hashan has implemented and enforced a universal mask requirement for employees, staff, children and all visitors when in the facility since reopening on April 20, 2020,” according to the lawsuit. 

After the board of health’s order was approved, a parent contacted the school to say they would like their child to be exempt from mask requirements, according to the document. 

“The presence of an unmasked child within Parker Montessori created problems,” according to the lawsuit, which went on to cite risks for immunocompromised children and concerns of staff members. 

In the section relating to Henderson’s hair salon, the lawsuit says that the owner wishes to implement a mask order because an outbreak of COVID-19 would affect the business and could include “possibly requiring the business to close.”

“An unmasked client presents an increased risk to Plaintiff Henderson’s employees; and other clients’ health, and an increased risk of a COVID-19 exposure that could cause financial harm to Plaintiff and her business,” according to the document. 

First lawsuit, cost

After months of disagreements with Tri-County Health Department, Douglas County in July 2020 gave the required one-year notice that it would form its own health department but later walked that decision back after Tri-County agreed to allow counties to opt out of public health orders. 

In August 2021, Tri-County voted to stop those opt-outs and enacted a school mask mandate. As a result, the Douglas County commissioners immediately split from the health agency and formed their own, claiming that the original one-year notice from July 2020 was revived because Tri-County had gone back on the earlier agreement.

When the new Douglas County Health Department first approved its exemption order, the board of health told Colorado Community Media that it would only be enforced in schools, even though its language could technically apply anywhere in the county.

On Oct. 26, a judge ordered the Douglas County Health Department to temporarily stop enforcing the exemption order in schools after the school district sued the department, arguing that the rule violated the civil rights of students with disabilities. 

After a school board election changed the district’s board to be mostly made up of anti-mask-mandate members, the board of health voted Nov. 12 to amend their exemption order so it would no longer apply to schools. 

“Our current public health order requires places of public accommodation that are requiring masks to provide exemptions to individuals for health reasons,” according to a statement on the Douglas County website dated Nov. 24.

An invoice from the law firm Greenberg Traurig titled “Re: Public Health Order Litigation” shows that the board of health incurred about $87,000 in legal fees during the month of November, according to the document acquired by CCM in a public records request.