This article appears in the Sentinel Paper in the Friday April 10, 2020 edition, with the editor’s title
” The Custer Gulag: Unelected Bureaucrat Orders County “Closed” Jobs Lost, Bills Unpaid, Car Loans Defaulted,
Families Decimated Financially.
Why? Two Sick People in the Whole County.”
To view it as it was printed, click here. 041020 pg 7
An Analysis of Custer County’s
Stay-in-Place Edict:
“This is what tyranny looks like.”
“By legal standard, a government’s actions are arbitrary and capricious when they are founded upon unreasonable grounds, are made without any proper consideration of circumstances, deny due process, and prejudice substantial rights. Therefore, by that legal definition, these shelter-in-place orders are arbitrary and capricious.” —KrisAnn Hall
(see end of page for a prepared summary of KrisAnn’s argument)
by Jackie Bubis
Commentary and Analysis
April 5, 2020
After reading through Public Health Agency Order 20-04 from the Director of the Custer County Public Health Agency, I have a few observations and questions. I note that many of the ORDERS in this document are word for word from the state document.
There seem to be a number of assumptions stated as fact in the Purpose section of the document:
“fact that numerous travelers from around the world visit our area”
“may result in serious illness”, “will have the effect of interrupting the functioning of the community”, “will overwhelm the capacity of the local health care systems,”
“This order will reduce the likelihood that many individuals will be exposed…”
“This PHO will also enable the services, businesses, and travel necessary to protect the health and safety of our community and preserve the continuity of social and commercial life as we save lives.”
“Failure to comply with any of the provisions of this PHO constitutes an imminent threat to public health.”
This order encompasses all the orders sent down from on high by the state and adds to them, making them even more strict.
In the Stay at Home portion of the ORDER:
1a states that all residents of Custer County are ORDERED to stay at home whenever possible. It goes on to say that “may leave their residences only to perform or utilize Necessary Activities.” Nowhere in the document are “Necessary Activities” defined. So can the residents of Custer County leave their homes to take a walk? Can they leave their homes to ride a bike or a horse? Can they take a nice drive down a country road with their spouse?
NOTE: The corresponding paragraph from the state order reads exactly the same. However, that document does have definitions of “Necessary Activities.”
1b states that all public and private gatherings of ANY number of people occurring outside a residence are prohibited, except for the limited purposes which include “Essential Activities.” Nowhere in the document are “Essential Activities” defined. (It benevolently allows the gathering of people who live in the same house.)
1c states that Residents of Custer County who have traveled out of State for more than 24 hours must be under a 14-day self-quarantine. This includes part time residents returning to Custer County.
1d both “directs” and “strongly discourages” all variations of vacationing in Custer County until April 30th. Will visitors be subject to fine or imprisonment?
1e urges higher risk people to stay in their residence at all times except to seek medical care. Do these high risk people also fall into the category of “all residents” ORDERED in 1a?
1g PROHIBITS all “Unnecessary Travel”
by automobile or public transit. “Unnecessary Travel” is not defined within this document. Are we allowed to drive our car to town to pick up dinner at Willie’s? Are we allowed to drive our car to town to buy deodorant? Can we ride a horse to town or is that covered in 1a? And…what public transit do we have in Custer County?
In the Business Requirement section, there are a few things I need clarification on.
2c states that even liquor stores MUST establish curbside pickup only. Apparently I can only purchase items from the liquor store that I already know the name and size of, since they do not have a menu. Okay.
2d again “strongly recommends” that retail establishments limit the number of customers in the store in order to abide by Social Distancing Requirements so it is assumed (I know that’s dangerous) that this measure cannot be enforced with fines or jail time for the business owners.
2e requires “Grocery, retail, convenience, hardware, farm and ranch supply SHALL follow the CDPHE Guidelines in having hand sanitizer, germicidal wipes, or hand washing stations available where patrons enter and exit. All check out stations will be wiped down after each customer with the proper disinfects recommendation by EPA.” Is there a list of recommended disinfectants that are required? Where can that list be found and are these disinfectants readily available? Are there sufficient hand sanitizers or germicidal wipes available for purchase by these businesses to provide these “stations” at the entry/exit?
2f shuts down all hotels, motels, short-term rentals (30 days or less), bed and breakfast establishments, Airbnb, and lodging except with written permission of the CCPHA Director. They are still required to follow CDPHE guidelines even when shut down, apparently. Will these businesses be reimbursed fair market value of their losses by the CCPHA or Custer County as required by the Colorado Constitution? (COLO. CONST. art. 2, § 15) Also noted is that if the CCPHA Director grants a hotel or motel to house essential personnel, at no time will the hotel/motel room be used for leisure purposes?
The Enforcement section states: “This order will be enforced by all appropriate legal means. Local authorities are encouraged to determine the best course of action to encourage maximum compliance. Failure to comply with this order could result in penalties including a fine of up to one thousand (1,000) dollars and imprisonment in the county jail for up to one year, pursuant to 25-1-114, C.R.S.” Does this imply criminal charges? Which
local authorities fall under this order? And what exactly is “maximum compliance?”
Next we are told that there will be no active searching for violations. However, if your neighbor rats you out, the county will “reach out” to you to (re)educate, provide guidance and enforce this
ORDER, if necessary.
This document is a classic example of arbitrary and capricious orders. This is what tyranny looks like. (See below the excerpt of 20-04 for more on Arbitrary and Capricious orders.)
The Stay in Place Section of 20-04
Excerpted section of Custer County Public Health Order 20-04 ORDER:
1. Stay At Home
a. All residents of Custer County are ordered to Stay At Home whenever possible. Individuals living in shared or outdoor spaces must at all times, to the greatest extent possible, comply with Social Distancing Requirements, and may leave their residences only to perform or utilize Necessary Activities.
b. All public and private gatherings of ANY number of people occurring outside a residence are prohibited, except for the limited purposes expressly permitted in this Public Health Order (PHO) which include Essential Activities. Nothing in this PHO prohibits the gathering of members living in the same Residence.
c. Residents of Custer County that have traveled out of State for more than 24 hours must be under a 14-day self-quarantine. This includes part time residents returning to Custer County.
d. All Custer County Visitors are directed to return home. CCPHA strongly discourages all variations of vacationing in Custer County until April 30th.
e. People at higher risk of severe illness from COVID-19 are urged to stay in their Residence at all times except as necessary to seek medical care. People who are sick must stay in their residence at all time except as necessary to seek medical care, and must not go to work, even for a Critical Business.
f. Individuals experiencing symptoms of COVID-19 must self-isolate until their symptoms cease or until they have a negative test result. Due to limited testing availability and narrow criteria for testing, if an individual has tested positive for COVID-19 and/or has developed symptoms of COVID-19 including early or mild symptoms (such as cough, fever and/or shortness of breath) they should be in isolation (staying away from others) until they have had no fever for at least seventy-two (72) hours (that is three full days of no fever without the use of medicine that reduces fevers), other symptoms have improved (such as cough or shortness of breath) and at least seven (7) days have passed since symptoms first appeared.
g. All Unnecessary Travel is prohibited including, but not limited to, travel by automobile or public transit. People must use public transit ONLY for purpose of performing Necessary Activities or maintain Critical Governmental Functions. People riding on public transit must comply with Social Distancing Requirements to the greatest extent feasible.
2. Business Requirements
a. Critical Businesses as defined by the Governors Order 20-24, are encouraged to remain open, although subject to certain limitations. Critical Businesses must always comply with Social Distancing Requirements at all times, adopt work from home or tele-work polices for any operations that can be done remotely, and implement other strategies . Such strategies may be to stagger schedules or re-design workplaces to create more distance between workers, unless doing so would make it impossible to carry out critical functions. Critical Businesses that serve the public such as grocery stores and other critical Retail shall comply with Social Distancing Requirements at all times, including when any customers are standing in line inside or outside.
b. Child care facilities providing services exempt in this PHO must, to the greatest extent possible operate under the following conditions: (1) child care must be carried out in stable groups of 10 or fewer (“stable” means that the same 10 or fewer children are in the same group each day); (2) children shall not change from one group to another; (3) If more than one group of children is cared for at one facility, each group shall be in a separate group. Groups shall not mix with each other; (4) childcare workers shall remain solely with one group of children. To the greatest extent possible, childcare shall be performed in compliance with Social Distancing Requirements.
c. Restaurants, liquor stores, and coffee shops must establish curbside pickup only, no customers are to be allowed inside the establishment. This allows for proper compliance with Social Distancing Requirements.
d. CCPHA strongly recommends that Custer County retail establishments (such as grocery stores, dollar stores, hardware stores, food pantries etc.) limit the number of customers within the store in order to abide by Social Distancing Requirements. Retail establishments must follow CDPHE’ s Guidance (see the Retail Food Establishment COVID-19 Implementation of Public Health Order and Amended Notice of Public Health Order 20-22 Closing Bars, Restaurants, Theaters Gymnasiums, Casinos Non Essential Personal Services Facilitie s, Racetrack and Off Track Para- Mutual Wagering Facilities Statewide) to minimize the spread of COVID-19 in the community.
e. Grocery, retail, convenience, hardware farm and ranch supply shall follow the CDPHE Guidelines in having hand sanitizer, germicidal wipes or hand washing stations available where patrons enter and exit. All check out stations will be wiped down after each customer with the proper disinfects recommendation by EPA.
f. All short-term lodging must cease operations. Short term lodging includes but is not limited to hotels, motels, short-term rentals (30 days or less) bed and breakfast establishments, Airbnb, and lodging. All short-term lodging establishments shall follow CDPHE guidelines for minimizing the spread of COVID-19. Authorized use for the purposes of emergency, quarantine, or to provide lodging for essential personnel must be in writing by the CCPHA Director. At no time are these to be used for leisure purposes.
3. Houses of Worship and faith-based organizations shall abide by Social Distancing Requirements including 10 or fewer people until April 30, 2020. Pastoral services for individuals (one at a time or practicing appropriate Social Distancing Requirements) who are in crisis or in need of end-of-life services will be allowed. Services can be conducted remotely through Face book, GoTo meeting, Zoom or any technology platform. If a technology platform is unavailable due to beliefs, organizations must still abide by Social Distancing Requirements including 10 or fewer people and a 6-foot distance between each person.
ENFORCEMENT:
This order will be enforced by all appropriate legal means. Local authorities are encouraged to determine the best course of action to encourage maximum compliance. Failure to comply with this order could result in penalties including a fine of up to one thousand (1,000) dollars and imprisonment in the county jail for up to one year, pursuant to 25-1-114 C.R.S.
Custer County will not be actively searching for violations. However, if the county receives reports of events contrary to this order the county will reach out to the organizer/leader/owner/management to educate, provide guidance, and enforce the provisions of this order, if necessary.
Editor’s Note/llv:
(To read the entire 20-04 document (now edited/amended) go to https://www.custercountycolorado.com/covid-19
or https://909dc6b6-7c64-47ad-9738-c2133857719c.filesusr.com/ugd/92b9d1_1b9f83929630495b8c8c78bde02f4e72.pdf
Note the updated version changed it’s wording (probably a good idea) on Restaurants, liquor stores and coffee shops (allowing one person at the counter). It still contains the line in the lodging edict “purposes of emergency, quarantine, and essential personnel can be given verbally or in writing by the Custer County Public Health Agency Director.” And “People must use public transit ONLY for the purpose of performing Necessary Activities or maintain Critical Governmental Functions.” (We don’t have buses, taxis, trains or anything remotely resembling Public Transit – except those who taxi the Amish to and fro and a Rotary Van that transports seniors and those who need to get to medical appointments – and it is not in operation right now). Thankfully, the horribly written Houses of Worship dig on our Amish and Mennonite populations that read “Services can be conducted remotely through Face book, GoTo meeting, Zoom or any technology platform. If a technology platform is unavailable due to beliefs, organizations must still abide by Social Distancing ” has been removed. The line “10 or fewer people until April 30, 2020.” however, was changed to ” avoiding gatherings of any number of people.”
Arbitrary and Capricious Orders
KrisAnne Hall has been focusing on her Radio Show. Below is a summary from Episode 1067 Krisanne Hall Show prepared by Jackie Bubis.
American was built on private property private rights and individual Liberty; all trashed, all gone. These stay-at home orders are completely arbitrary. They deny due process. They are rife with the legal principle of unbridled discretion.
Arbitrariness is the quality of being determined by chance, whim, or impulse, not by necessity, reason, or principle. A shelter-in-place order that requires a worship service to close where a finite number of people sit far apart for a few hours but allows a Walmart, Costco, Home Depot (where limitless people come and go every single day, touching everything) to be open is the very definition of arbitrary.
By legal standard, a government’s actions are arbitrary and capricious when they are founded upon unreasonable grounds, are made without any proper consideration of circumstances, deny due process, and prejudice substantial rights. Therefore, by that legal definition, these shelter-in-place orders are arbitrary and capricious.
When we shut down these businesses this is a taking of your business. It is a regulatory taking “in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it.”
Whether temporary or permanent, it makes no difference. It’s a taking. Every state constitution and the U.S. Constitution state that if the government is going to take your property, there must be due process and you must be given fair market value. Has your county talked to you about the fair market value loss of your business? Have they told you how they’re going to reimburse you for the
eminent domain taking of your property? No.