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Three patients of Pioneer Health Care Center in Rocky Ford who tested positive for COVID-19 (one test is awaiting confirmatory results) have died, Crowley / Otero Health Departments Director Rick Ritter told the Tribune-Democrat Friday. Ritter said the health department gives its condolences to their families.

"Any time this happens we are certainly sorry that they lost a loved one," Ritter said.

COVID-19 cases in Otero County totaled 36 as of Saturday, according to Colorado Public Health and Environment, although Ritter said in a news release that numbers reflected by the state were not up to date. In the same statement, Ritter confirmed that three coronavirus patients at Pioneer Health Care Center in Rocky Ford had died and at the nursing home two staff and a total of 13 patients tested positive for the novel coronavirus. Ritter noted that results of confirmatory tests for some patients were still awaiting results as of Saturday.

Following Gov. Jared Polis's executive order mandating mask use in indoor public facilities July 16, businesses and services have had to crack down on enforcing mask use. Although many businesses and public buildings have posted signs alerting prospective patrons to their mandated enforcement of mask use, others have posted notices that state they will not enforce mask use.

In some instances, the notices make questionable references to the Health Insurance Portability and Accountability Act, the 4th and 5th Amendments, or other facets of the U.S. Constitution or U.S. law.

Thaxton's Market in Fowler, for example, posted a sign in their window that read, "Due to HIPPA and the 4th Amendment, we cannot legally ask you what your medical condition is."

The sign continued to state that store employees would assume anyone entering without a mask was exempted from the statewide mandate. The Tribune-Democrat called Thaxton's Market last week to inquire about the store policy, but it did not hear back in time for publication.

Arkansas Valley Lumber outside Rocky Ford stirred up controversy when a sign it had posted in its entrance made rounds across local social media groups. The sign declared Arkansas Valley Lumber was no longer a public company and would only accept business from "United States citizens that believe in their constitutional right of freedom from oppression."

A day later, Arkansas Valley Lumber apologized on its official Facebook page and clarified that it would not discriminate against anyone, although it maintained that it would not enforce the use of masks.

Ritter isn't sold on Thaxton's claims or those of others, however.

"There's a lot of information I'm just going to come out and say it disinformation out there," said Ritter.

Ritter noted the statewide mask order makes exemptions for people with health conditions that complicate their breathing, such as asthma or COPD.

But contrary to what some businesses are claiming, a store is not legally prevented from offering patrons masks, nor is a store prohibited from asking someone who claims to have a medical condition that prevents mask use what that condition is, according to attorney to Otero County Nathan Schultz.

"I've seen a lot of people saying they're not going to ask about masks due to HIPPA," said Schultz. "The Fourth Amendment, then one store that says they're not going to ask about masks because of the Fifth Amendment. HIPPA is designed to protect information from covered entities, like doctors and hospitals, from disseminating that information without a release. That has absolutely no bearing on a grocery store. The Fourth Amendment and Fifth Amendment, both, any time you're trying to claim you have constitutional protection, there has to be government action."

Schultz agreed it was possible that some business owners might have conflated HIPPA with the American Disabilities Act, which prohibits discrimination based on disability. But even the American Disabilities Act allows for what Schultz called reasonable inquiry if someone doesn't have an obvious disability.

"I think the stores still have the duty to ask someone to wear a mask," Schultz said. "If they're saying they don't cause of health reasons, you can ask what the health reason is because then the store needs to establish what reasonable accommodations they can make."

Schultz said allowing someone to not wear a mask would probably not be a reasonable accommodation. Instead, though, a store could implement curbside service in such an instance, Schultz suggested.

Schultz said seeing misinformation circulate on social media has been frustrating. Counter to more claims from those opposed to mask use saying the governor's mandate was unlawful or does not have the same effect as law, Gov. Polis's executive order carries the full weight of law, Schultz said.

"Earlier this week, the public health order 20-31 came out, also mandating masks. Public health orders are enforceable by local law enforcement under 25-1-506," said Schultz. "Those can be punished civilly, they can do it administratively where they can pull your business license, or they can do it criminally up to a first degree misdemeanor."

Otero County Sheriff Shawn Mobley said his office will not enforce the mask mandate. Mobley referenced his short staffed department and ongoing criminal investigations. Schultz said he thinks Mobley's decision is okay, but that he was angered by sheriffs from other counties who claimed Polis's law was unconstitutional or did not carry legal weight.

Bent County Sheriffs Office also said in a joint statement with Bent County Public Health that the sheriffs office there would not be enforcing the mask mandate, although they did not provide additional reasoning with their statement.

Otero County will try to utilize civil and administrative means to regulate the mask mandate as opposed to pursuing criminal charges, Schultz said, noting it doesn't do anyone any good to start jailing more people right now.

Another piece of disinformation Schultz wanted to address was that of masks versus the size of COVID-19 particles. Schultz made the distinction that the novel coronavirus that causes COVID-19 is not airborne in the stirctest sense: The viruss primary mode of transmission from host to host is through respiratory particles in other words, spit.

"I'm still seeing a lot of misinformation about the cloth masks themselves," Schultz said. "A lot of people are pointing out micron sizes and all that. This virus has never been airborne, it's transferred through saliva droplets. So the cloth mask does nothing to protect the wearer, it's designed to protect the community from the wearer. So if everyone's wearing a mask, the saliva's less likely to spread to others.

In other words, posts on social media claiming that cloth masks dont stop COVID-19 from passing through them are missing the point, because COVID-19 travels primarily in much larger respiratory droplets that are stopped by a cloth face covering.

Health Director Rick Ritter stressed that many businesses have been compliant with the mask order and that the health department receives numerous calls daily from people looking to improve the safety of their establishments.

Ritter said hes seen people be dismissive of social distancing guidelines and mask use because they dont believe others are taking it seriously.

"To the people saying, 'Well nobody's doing it," that's absolutely wrong," said Ritter. "And that is disrespecting the businesses that are working hard to do what's right, to protect customers, employees, and this is not a hard thing to do, my gosh, we put on pants to cover our lower torso, we put on shirts, and that's not a violation of our constitutional rights.

"If I went out naked on the street, and you can print this, the police would be called. If I said, You can't make me put on pants, that's against my constitutional right to be naked, that wouldn't cut any ice. We're just covering our face and if somebody says, Well you put on pants for decency's sake, I say you put on a mask for decency's sake because you're protecting others.

"A mask is primarily worn to protect others, and that's what I'm saying. These cloth masks, if we all wear them like we're supposed to, it's a kindness to others, it's a consideration for others, and we're going to reduce risk."

Schultz added the health department is working around the clock to try to achieve the best outcome for the community.

Tribune-Democrat reporter Christian Burney can be reached by email at cburney@ljtdmail.com. Help support local journalism by subscribing to the La Junta Tribune-Democrat at lajuntatribunedemocrat.com/subscribenow.

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