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How enforceable are the governor's COVID-19 guidelines? One Billings casino owner fears 'not at all'

Just because a complaint is made for not following protocols, there may be little local officials can do legally about it
Posted at 11:06 AM, Sep 01, 2020
and last updated 2020-09-01 13:06:16-04

BILLINGS- Montana’s bars and casinos are open for business while Gov. Steve Bullock’s phase 2 COVID-19 guidelines remain in place. However, frustration is mounting with some Billings business owners, who say the rules are not being followed across the board.

This is prompting officials with the Yellowstone County’s attorney’s office and the health department to talk about how the governor’s guidelines are being enforced.

The guidelines still mean some limitations remain -- including sanitation protocols, social distancing measures and even adjustments in the way bars and casinos operate.

The tricky part: just because a complaint is made against an individual or a business for not following COVID-19 protocols, doesn't mean officials can enforce them.

“When the governor rolled out his guidance, we, we did take it very seriously,” said Josh Benson, a Billings casino-chain owner.

So seriously in fact, that he shuts down Warden’s Casino in the Billings Heights each morning at 12:30 a.m.

Warden's Casino in the Billings Heights
Warden's Casino in the Billings Heights

But it's not because he wants to.

“Getting back to normal, as fast as we can, is my top priority right now,” said Benson.

Benson feels that by adhering to the guidelines and adjusting his business operations, his customers will remain safe and the restrictions could be lifted sooner with a reduction in COVID cases.

“You know, ultimately there's been a spike in Yellowstone County's COVID numbers,” said Benson.

In recent months, that spike according to the Yellowstone County health officials has been in part due to people not social distancing at Billings bars.

Casino owner Josh Benson fears he's losing out on business while others are cashing in
Casino owner Josh Benson fears he's losing out on business while others are cashing in

But that is just one worry for Benson.

“When businesses around us stay open until two o'clock (a.m.) When we close at 12:30, we do lose business,” said Benson. “Customers will leave our establishment, even before 12:30 to ensure that they get a seat at a casino or a gambling machine at 12:30.”

Benson loses out on business from valued customers and an income to his establishment during the uncertain economic time of the pandemic.

But there is a system in place for the public to report complaints. For many, it starts with RiverStone Health’s public health information line.

RiverStone Health officials say when a complaint comes in regarding a business they license, they have a three-step investigative process.

On the first complaint, health officials call the establishment and ask for compliance. On the second; the establishment is visited and asked to sign an agreement to comply. However, by
the third complaint, it’s handed over to the Yellowstone County attorney’s office.

Around 990 complaints have come into Yellowstone County’s in-house counsel division since the start of the pandemic and that’s when Jeana Lervick, the chief in-house deputy, takes it.

“Nothing's ever 100% perfect and there are always exceptions or situations that come up, but I think for the most part bars and restaurants have really excelled at trying to adhere to these requirements,” said Lervick.

She says that’s because those bar and casino owners are invested in keeping their customers safe.

Yellowstone County in-house counsel Jeana Lervick works to ensure businesses are complying with COVID
Yellowstone County in-house counsel Jeana Lervick works to ensure businesses are complying with COVID

However, of all the complaints that have come into her office, none have led to charges.

Lervick explains that the governor’s directive doesn’t allow for complaints to result in a citation, so instead repeated violators would need to be criminally charged in court.

But for that to happen, the case would have to be strong enough to do so. So instead, her office takes an educational approach, much like RiverStone Health.

“Almost all of the complaints have been ones that we've been able to resolve by talking with folks, and really that's what the governor's orders have contemplated, which helps it out a lot,” she said.

She says they aim to do public education first, which she believes has been successful. And businesses that have compliance issues are warned and given a plan to work out the misunderstanding.

“Because it's that significant of an issue, we're also very careful and making sure that we're following all our requirements, that we're dotting i's and crossing t's and making sure that requirements there,” said Lervick.

On a state level, those with the Montana Tavern Association have taken a hard stance on compliance.

Government Affairs Director John Iverson says the agency believes all tavern operators should be following the laws in place when it comes to COVID-19.

"The Montana Tavern Association hopes that local and state public health officials consider the broad and significant impacts to hospitality employees and their employers - when considering what restrictions are imposed, to reduce the impacts of COVID-19 on the public,” he said in a statement to MTN News.

Benson feels as a business owner –he’s operating under COVID guidelines in good faith, while other Billings businesses are not.

He says when he’s reached out to county or even state agencies for answers on enforcement, he’s been left with little to no answers.

“You know they essentially said they received a lot of complaints. They have forwarded them all to the county attorney but as to their knowledge they, nothing has been done about it yet,” said Benson.

His worry is the guidelines are unenforceable and that has him frustrated with the entire process.

“At the end of the day if we are not able to if we're going to continue losing money and not being able to employ our staff, we may be forced to stay open until two o'clock,” he said. “If the county or the local police department chooses not to enforce the governance guidelines.”