MINOT, N.D. — A Minot assisted living facility has sued Gov. Doug Burgum and Health Department Commissioner Mylynn Tufte over the state-ordered closing of its in-house hair salon.
In the lawsuit filed Wednesday, April 22, by Mandan lawyer Lynn Boughey in District Court in Bismarck it claims the action was "unreasonable and overly broad" and asked for a preliminary or permanent injunction to allow the salon owned by the Somerset Court facility and operated by independent contractor and cosmetologist Kari Riggin to reopen and to have the governor's executive order amended.
It said Riggin didn't have any outside clients at other locations and that she had been limiting the salon to one person at a time and applied safety measures.
Burgum, who issued the order to close facilities operated by cosmetologists, manicurists and barbers effective March 28 to accelerate social distancing, said at his briefing Thursday, April 23, that he couldn't comment on pending litigation.
However, Burgum said the state understands that elderly people likely have a relationship with their personal care provider, which might include getting their hair done.
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“We’re deeply empathetic, but we also understand that the rate of where we can have the highest and fastest rate of outbreak that could be fatal would be inside of long-term care facility,” Burgum said.
He said the state is trying to limit those types of interactions in order to protect a vulnerable population.
“We'll take a look at the lawsuit, but meanwhile we're going to try to work to both reopen personal care businesses and protect our elderly,” he said. “This is at the intersection of that difficult spot.”
While he says he doesn’t worry about other lawsuits being filed against himself and the state, Burgum said he’s “certain they’ll come in.
“When you have got a point in history that's never happened before, it tends to test existing laws and so I'm sure a legal bonanza of lawsuits will be coming out the backside of this as people try to sort their way through,” he said, noting the state considers the laws at hand before it makes a decision. “We feel quite confident that everything we've done so far falls well within the parameters that we have under the emergency powers.”
Meanwhile, the lawsuit said it would be better for the facility to use Riggin and her experience rather than to have facility aides help residents with hair washing, styling and grooming and that many of the aides didn't want to go into each of the various apartments anyway.
The lawsuit claims it puts the staff and residents at additional health risk by forcing staff to provide the services and "in many cases holds the residents hostage in their rooms" because they are "embarrassed about their looks" to come down for meals, activities or to even grab their mail. Additionally, it claims many residents "are unable to wash or set their own hair" or do it in their sinks.
Riggin said she has been cleaning the chair, sink, floor and counters of the salon in between each resident.
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Facility Director Melissa Van Deventer said as part of the case that "immediately following our recent salon closure we received numerous complaints and worries from residents. Many were saddened because this is one of the very few things they have to look forward to due to the restrictions on assisted living residents during the pandemic.
"Our residents have missed their appointments and it has had a great effect on their mental and emotional well-being as well," she said.
The lawsuit details some confusion during April over whether the facility could remain open.
The first email the state sent to the assisted living facility about the issue was on March 30, which said Burgum's order didn't affect assisted living facilities. That was changed on April 1.
After apparent complaints, Van Deventer received a call on April 7 from the Department of Health's Dr. Joan Connell concerned that the salon was still open. Connell said they needed to "come up with a plan to appease all sides to this."
The facility remained open as further talks on the state level continued, but on April 14 the Minot Police Department issued a ticket to Riggin for failing to comply with the governor's order. On April 16, a directive stated that the governor's order applied "to all salons." It has been in place since.
