Judge upholds mask mandate

Rule to remain in place through end of January amid COVID-19 surge

An Anne Arundel County Circuit Court judge denied a preliminary injunction to block the countywide mask mandate issued Jan. 7 by the county health officer after 15 minutes of deliberation Tuesday afternoon.

The ruling by Anne Arundel County Circuit Court Administrative Judge Glenn Klavans keeps in place the requirement that face coverings be worn in indoor county public areas and crowded outdoor public settings through Monday. This follows a ruling by Anne Arundel Circuit Court Judge Donna Schaeffer last week to not issue a temporary restraining order against the mandate.

Klavans said Anne Arundel County Health Officer Dr. Nilesh Kalyanaraman had the authority to reinstitute the mask mandate in a public safety order 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.”

“The health officer is directed by the statute to act immediately and doesn’t have to seek approval from a county board of health prior to his act, which causes delays. But it is clear this legislation saw infectious or contagious diseases in a different light to empower [the] health officer accordingly,” Klavans said Tuesday.

To grant or deny a preliminary injunction, courts use four requirements, according to Cornell Law School: the plaintiff ’s likelihood of prevailing on the merits; a showing of irreparable injury to the plaintiff if relief is not granted; the threatened injury to the movant is demonstrated to outweigh whatever damage the proposed injunction may cause the opposing party; and the balancing of equities.

Klavans said the plaintiffs in the Jan. 14 lawsuit — Pasquale Carannante, who owns Bella Napoli Italian Restaurant in Pasadena, and James Zimmerer, the owner of a fitness business in Annapolis — failed to meet all four of those requirements. Failure to prove just one is enough for a judge to deny the injunction.

“The courts found the health officer had the authority to issue the order for public safety, which contains reasonable exceptions for disabilities and medical conditions and for people eating or drinking or exercising. The order is of limited duration and fully meets the needs of the community and current public health emergency concerning a communicable disease, so the plaintiffs have failed to meet likelihood of success based on merits,” Klavans said Tuesday.

Klavans said Carannante and Zimmerer were correct that Kalyanaraman didn’t act immediately about the COVID-19 omicron variant, but said the health officer did act swiftly after the County Council voted not to extend the mask mandate Jan. 7.

Anne Arundel County Executive Steuart Pittman on Tuesday voiced support for the court’s decision to recognize Kalyanaraman’s authority to issue the order under

his powers as health officer.

“I hope and anticipate the expiration of the order on Jan. 31, as it has accomplished what Dr. Kalyanaraman intended — flattening the curve of the omicron wave during a critical moment for our hospitals and health care workers,” Pittman, a Democrat, said in a statement.

Kalyanaraman echoed Pittman’s praise for the judgment.

“I am grateful the court recognizes we have a duty to protect public health,” he said in a statement.

Klavans said another factor that favored the defendants was that there is only six days remaining on the order.

“No economic harm or harm to the plaintiffs could be found by the courts with the limited duration and adequate exceptions weren’t applicable to the two businesses involved,” he said.

As far as the requirement of irreparable harm, Klavans mentioned Schaeffer’s decision to decline the temporary restraining order on Jan. 19.

“The plaintiffs presented thin anecdotal evidence and involved assertions that customers wouldn’t patronize their businesses if required to wear a mask,” Klavans said Tuesday. “Two witnesses testified to no constraints for them to wear a mask and the health club manager didn’t seem aware of the order. And the restaurant owner said it is inconvenient and awkward to take orders from customers. I do not think any of this approaches irreparable injuries for the six days remaining.”

Klavans said the defendants’ actions supported protecting public health during the pandemic and the recent surge of cases.

As of Tuesday, the county had a daily positivity rate of 63.7 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 14.38%, a notable decrease from the beginning of the month when it was 30.23%, according to the Anne Arundel County Health Department.

Republican county executive candidate Herb McMillan, who along with Republican County Council member Nathan Volke had initially approached a lawyer about challenging the legality of the mandate earlier this month, said they plan to appeal the court’s decision and continue the case in court.

“Our constitutional and legal arguments are strong, and we believe that ultimately, the courts will uphold our view that an unelected county bureaucrat did not have the

authority to overturn the vote of an elected County Council. This case is about democracy, not just mask mandates,” McMillan said in a statement.