CLAYTON — St. Louis County Executive Sam Page on Monday issued a new countywide mask order, citing support from a majority of the County Council, but reigniting the public debate — and confusion — regarding the legality and enforceability of such orders.
The mask order, effective immediately, requires face coverings in public places indoors and on public transportation for vaccinated and unvaccinated individuals 5 and older. It cites scientific consensus from federal, state and local public health officials that masks are necessary to limit the spread of COVID-19 until more people are vaccinated.
The order marked Page’s second attempt to mandate masks since late July, when Attorney General Eric Schmitt sued to block the first measure, the County Council voted to rescind the order, and, days later, a county judge knocked the mask order for being unenforceable.
Within hours Monday, Republicans, including Schmitt and County Councilman Tim Fitch, claimed the new order wasn’t legally enforceable either, and encouraged supporters to defy it. A spokesman for Schmitt said the office was “pursuing all legal options available.” And at least one county municipal official — Eureka Mayor Sean Flower — announced that his administration would not enforce the order in the municipality of just under 11,000 people.
The effect of the order was not immediately clear. Ben Brown, a conservative activist and owner of Satchmo’s restaurant in Chesterfield, said he again thought it was illegal. “This just seems like another gaslighting attempt,” he said, adding that he would not require masks at Satchmo’s.
But at restaurants owned by acclaimed chef Gerard Craft, the new rules will be in full effect, Craft said, as they have been since the county first issued a mask order July 26 in response to a spike in COVID-19 cases.
“I honestly didn’t know that we’d stopped the mask mandate,” Craft said.
The new mask order is intended to effectively replace the July 26 mask mandate currently tied up in a legal challenge from Schmitt, who sued to block the order the same day it was issued. The next day, a County Council majority — Republicans Fitch, 3rd District, Mark Harder, 7th District, Ernie Trakas, 6th District, plus Democrats Rita Days, 1st District, and Shalonda Webb, 4th District — voted 5-2 to rescind the order after complaining that Page didn’t go through them. They cited a new state law, approved by a Republican-controlled Missouri Legislature, limiting public health orders to 30 days without approval from local politicians.
But Page’s administration argued the vote was not legally binding, prompting Schmitt to ask the court for a restraining order. Judge Ellen “Nellie” Ribaudo granted it Aug. 19, citing the council vote and the county’s stance that it would not seek to enforce the order except in egregious cases.
On Aug. 27, after weeks of criticism and debate, Days and Webb joined with the council’s two other Democrats to approve a nonbinding resolution supporting a 30-day extension of the public health order. Days and Webb cited a meeting with acting Public Health Director Dr. Faisal Khan and local doctors in which they testified to the council that masks limit the spread of COVID-19. The county then asked Ribaudo to dismiss Schmitt’s lawsuit, arguing the resolution qualified as legislative approval.
But Ribaudo ruled the July 26 order had already expired. State law stipulates that public health orders end after 30 days if they don’t get approval from local legislative bodies.
Page said Monday that the new mask order was intended to “follow the guidance of the court.”
Khan signed the new order after receiving confirmation from Days, who is council chair, that she would not oppose the move. Issuing the order would “give council members the proper amount of time to deliberate and question all the evidence,” Days said. The council is expected to meet with Khan to discuss the measure Oct. 5.
Days said she expected the council Democrats’ 4-3 majority would uphold the mask order if Republicans called for a vote on the measure.
But Fitch said he wouldn’t ask for a council vote. He called the order illegal under a provision of the state law limiting public health orders to 30 days within a 180-day period and argued the county could not issue a second mask order until next year.
“My advice to my constituents is do nothing different,” he said. “Wait until there’s been a final court hearing on what you need to do.”
Schmitt, in a tweet, called the new mask order “tyrannical” and said his office would continue to “fight back.”
Page said such thinking had slowed county progress in combating the spread of COVID-19.
“Be anti-government all you want,” he said. “But defying common sense makes no sense, and comes at the expense of those who are at risk of becoming seriously ill or dying from this virus.”
New COVID-19 cases in the county have dropped to about 240 a day, down from a summer peak of nearly 350. Still, under guidance from the federal Centers for Disease Control and Prevention, the county needs to require masks as long as there are more than 70 cases per day, Page said.
“Masks are important to help keep our kids in in-person school and keep our businesses open,” Page said.
COVID-19 has killed 2,463 people in the county and infected at least 123,383 people, according to county records.
Fitch and other Republicans on Monday also pointed to a provision in the new mask order that bars “criminal penalties or criminal enforcement,” arguing it meant that people can defy the mask requirement without worry.
Page spokesman Doug Moore said Monday that the county would not seek to enforce the order except in egregious cases but still thought the mandate, rather than a recommendation, would get more people to wear masks.
“We do not want to use limited resources to enforce a mandate,” Moore said in a statement. “Our residents want to be in places where they feel safe. That has proven to bring solid compliance with previous public health orders.”
Austin Huguelet of the Post-Dispatch contributed to this report.