Constitutional Law, Coronavirus, Health Care, Legal, Original Report, Scott Weiser, Uncategorized

Pitkin County imposes entry restrictions; enforcement of ‘traveler affidavits’ unclear

ASPEN–Pitkin County has imposed a regulation, effective December 14, requiring overnight visitors to fill out an on-line affidavit saying they have had a negative COVID-19 test within 72 hours of arrival and have been symptom free for 10 days prior to travel.  They must quarantine for 10 days if they don’t meet those criteria.

Pitkin County is home to Aspen Mountain, Aspen Highlands, Buttermilk and Snowmass ski areas.

The health order purports to exempt full-time residents of Pitkin, Eagle or Garfield counties, but also says, “People who regularly commute, at least weekly, outside of Pitkin County to a fixed place to attend school or work or any person who regularly commutes, at least weekly into Pitkin County to a fixed place to attend school or work; provided that in either case, this exception applies only to and from the person’s residence and place of work or school.  Workers or students who travel to any place that is not their home residence for personal or leisure reasons cannot rely on this exemption.”

A plain reading of the exemption appears to say that residents of Pitkin County (who stay there overnight every night) who leave the county for any amount of time, cannot go to a grocery store, take-out restaurant, gas station or anywhere but their home, work or school without having to take a COVID-19 test every 72 hours and filling out an affidavit every day before returning to Pitkin County.

Penalties include a $5,000 fine and possible jail time.

“We have a lot of confidence in our community and visitors to do the right thing,” said Pitkin County Manager Jon Peacock, during a call-in press briefing Friday afternoon. “That said, we do have mechanisms, in terms of violation of the public health order, to impose fines, or even jail time.”

During the briefing, Laryssa Dandeneau, COVID-19 Program Administrator with Pitkin County Public Health said, “initially when we looked at doing this type of program and advocating for it, we were looking at Maine and Maine has a very robust traveler program. Similar to what we’re trying to do, they engaged the lodging community to partner in efforts to start this traveler affidavit program. We believe we’re the only county that is doing it on its own in the in the U. S. right now.”

Maine requires commercial lodging establishments, campgrounds, seasonal rentals, and short-term rentals to have guests complete a “certificate of compliance” prior to their stay. The establishments are required to keep the completed certificates on file for 30 days.

Unlike the Pitkin County affidavit program, Maine places the burden on lodging establishments to obtain the certificate as a prerequisite to check-in, and failure to do so can bring an action against the establishment’s business licensing or fines. It can also be enforced by Maine law enforcement officials. It is unclear whether visitors to Maine who are not staying in commercial establishments have to quarantine or keep and produce the certificate of compliance on demand.

Asked if visitors will be required to keep a copy of their affidavit on their person or if commercial establishments will be required to enforce the regulation, Peacock said, “We’re not going to be asking our partners and the private sector necessarily to enforce. However, we will have opportunities through our case investigation and contact trace process where we identify violations, or spot checking through our consumer protection program, where if we identify violations, it could lead to a fine.”

Asked if law enforcement would be involved, Peacock said that enforcement “would be from our public health team.”

How Pitkin County health authorities plan to go about identifying overnight visitors is also vague. Neither Pitkin County nor Aspen appear to require guests to complete registration records. Some cities, like Denver, have specific ordinances requiring such records be kept. However, virtually all hotels and motels in Colorado require guest registration, and operators generally make those records available to inspection by police or public officials.

Hotel guests do not appear to have any reasonable expectation of privacy in those registration records.

Concerns about constitutional protections against unreasonable searches and self-incrimination could scuttle the county’s plan to inspect documents at “spot checks” as it is unclear whether the county has the authority to conduct such checks, or compel production of identification or documents absent a reasonable, articulable suspicion or probable cause that the individual has violated a law or regulation.

A request was made for a statement by the Pitkin County Attorney on this subject but no reply was received as of press time.

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