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Gianforte rescinds restrictions on hours, capacity at some businesses

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Gov. Greg Gianforte

Gov. Greg Gianforte speaks to members of the press in the Governor's Reception Room of the Montana State Capitol on Jan. 5.

Montana Gov. Greg Gianforte will remove restrictions on capacity and hours of operation at bars, restaurants, casinos, breweries, distilleries and other businesses.

Under the new rules, there will also be no limitation on the size of public gatherings, though it is specified that they should be conducted in a way that follows social distancing guidance from the Centers for Disease Control and Prevention.

After his election in November, Gianforte formed a task force to review and advise him on the state's response to the pandemic, which by Wednesday had sickened 87,600 and killed nearly 1,070 Montanans.

The state has improved its vaccine distribution, Gianforte said Wednesday. About 42,000 Montanans have received their first doses and 11 counties are ready to move onto Phase 1B of the vaccine rollout. The state is also on target to provide first doses to 97% of long-term care facilities in Montana by the end of the month.

But those encouraging numbers don't reflect an improving economy, Gianforte said.

"It also doesn't account for the severe economic impact of the pandemic that has left Montanans out of work, and without a paycheck, through no fault of their own," Gianforte said. "And it doesn't account for the decision that too many small business owners have had to make to close their businesses for good, leaving behind what they've worked so hard to build. Improving our response to the pandemic has been my top priority."

The panel heard from business owners, nonprofits and others that the previous directives were "too complex, confusing and difficult to implement," Gianforte said.

The new directive, Gianforte said, was clear and fit on three pages.

"We've carefully reviewed the pages and pages of directives. Before taking any action, we consulted with public health experts, health care providers and business leaders and emergency management professionals. We took the time to get this right," Gianforte said.

Under changes Bullock made in November, capacity at bars, restaurant, breweries, casinos and more was set at 50% and operations had to close at 10 p.m.

Todd O'Hair, president and chief executive officer of the Montana Chamber of Commerce, was on Gianforte's panel. O'Hair said one of the most "uniformly agreed-upon decisions" was that the 10 p.m. closure was "unduly harmful for all businesses."

"The amount of hours that the business has available in order for them to make their monthly payments and payroll is severely restricted, and so this was one of several recommendations that came from that task force," O'Hair said.

Through the campaign, Gianforte emphasized personal responsibility over directives. He also focused heavily on the economic fallout from the pandemic. On Monday the state Department of Labor and Industry said it had paid out $12 million in unemployment benefits over the prior week. The state announced in October it had paid out $1 billion in benefits to more than 107,000 Montanans since the start of the pandemic.

Local public health officers, health boards and counties can still enact their own more restrictive measures, as many have done in expectation of changes like the ones Gianforte made Wednesday. They cannot issue less restrictive measures.

Last week the Gallatin County Attorney's office said that authority to adopt local rules and regulations does not change, even if the state's emergency declaration were rescinded.

Gallatin County is one of the places that has enacted more restrictive local measures. The public health officer there said that he expects businesses to keep following the local rules.

"On a day when we are announcing two additional COVID-19 deaths in Gallatin County, it is important to remember that in Montana, local boards of health have a duty under state law to take actions to protect the public health in their community," Matt Kelley, the public health officer, said in an emailed statement. " ... We expect businesses and individuals to continue to comply with these rules. This disease remains dangerous and the Board will continue to use the best scientific evidence and epidemiological data available to take actions to reduce spread of this dangerous disease."

Gianforte's order says the statewide mask mandate remains in effect, until the state reaches a point where the vaccine is more widely distributed and lawmakers pass a bill that provides liability protections to businesses and other organizations that follow public health precautions.

Last week, Gianforte, a Republican who took office Jan. 4announced those parameters for lifting the mask mandate.

In his executive order signed Wednesday and effective immediately, Gianforte also lifted two of former Democratic Gov. Steve Bullock's previous executive orders, Executive Orders 2-2020 and 3-2020, which declared a state of emergency. And while Gianforte's own order says that Montana is under a state of emergency, Bullock's last mask mandate issued in November said that if Executive Orders 2-2020 and 3-2020 ended, so did that statewide mask mandate.

"This directive ... expires at the end of the declared state of emergency in Executive Orders 2-2020 and 3-2020," Bullock's last mask mandate read.

While Gianforte's new order continues the mask mandate, along with the other changes for businesses, it is not effective until Jan. 15 at 5 a.m.

Gianforte's office said in an email late Wednesday the prior mask mandate is in effect, however: "Gov. Gianforte's executive order only expressly rescinds former Gov. Bullock's executive orders. Former directives remain untouched until the governor's directive dictates otherwise, and that goes into effect on Friday. "

The spokesperson did not clarify how the former directive on masks remained in place given the language about it expiring at the end of the prior executive orders.

Several other directives from Bullock were written to expire at the end of Executive Orders 2-2020 and 3-2020, including measures allowing for expanded telehealth operations. 

"Gov. Gianforte is and will continue to work with department heads to ensure continuity of important pandemic programs and activities," spokesperson Brooke Stroyke said Wednesday when asked about those measures.

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