Trespassing charge against maskless mom at Natural Grocers dismissed

A trespassing charge against a mom who took her mask down while carrying her baby through Natural Grocers was dismissed in court Wednesday, April 21, 2021.

It started when Krystal Scarborough, her infant and her young child were shopping on January 26, 2021.

While in the store, Produce Manager Amy Vaclav asked Scarborough five or six times to pull her mask up, the police report said.

Initially, Scarborough complied, but then pulled it down again so that she could breathe easier. Vaclav allegedly followed Scarborough around the store, telling her to wear her mask properly.

Vaclav told Officer Robinson that she had never asked Scarborough to leave the store.

When police arrived at the store to investigate, a manager named Scott Shield told police that he had asked Scarborough multiple times to leave the store. Scarborough later disputed this fact in court, saying that she was never asked to leave the property until the police arrived while she was waiting in line to pay.

Alarmingly, Shield dumped Scarborough’s already-bagged groceries out onto the counter and told the cashier not to check her out, Scarborough said. Scarborough was getting ready to pay, she said.

At that point, Officer Robinson asked Scarborough to step outside to talk. Scarborough complied, according to the police report.

After Officers Graves and Robinson conducted interviews, Officer Graves issued Scarborough a citation for trespassing based on what Shield said.

Following the incident, Taylor Borucki was moved into Shield’s position as Store Manager, and Shield not longer works there. Borucki said that people with medical exemptions are now allowed in the store with a face shield that the store will provide.

Trespassing law explained per municipal code

The trespassing citation (MCO 17-57) against Scarborough might be lawful if she had refused to leave after Shield had asked her to leave. If she was only asked to leave while waiting in line to pay for her groceries, one could reasonably concur that she was leaving by attempting to pay for her groceries.

Let’s look at the two paragraphs in Durango’s municipal code to see what may apply to this case.

(1) “Premises” means any real estate and all improvements erected thereon.

(2) A person “enters unlawfully” or “remains unlawfully” in or upon premises when the person is not licensed, invited, or otherwise privileged to do so. A person who, regardless of their intent, enters or remains in or upon premises that are at the time open to the public, does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to them by the owner of the premises or some other authorized person. A license or privilege to enter or remain in a building that is only partially open to the public is not a license or privilege to enter or remain in that part of the building that is not open to the public.

(g) It shall be unlawful for any person to remain on the premises of another after being requested to leave by the owner, agent of the owner, tenant or any person in possession or control of the premises, or by returning to the premises within twenty-four (24) hours from the request to leave or within such other period of time as may be specified in the request, without the permission of the owner, agent of the owner, tenant or any person in possession or control of the premises.

Criminal trespassing law written in Colorado Revised Statute

In contrast, Colorado Revised Statute §18-4-502 on criminal trespass differs from the municipal code on trespassing. The difference is in the way that it says that a person knowingly and unlawfully enters or remains in a “dwelling,” of another. In contrast, the municipal trespassing code refers to the same type of activity, accept it occurs in different place known as a “premises.”

A “dwelling” is defined in the State of Colorado as this:

“Any building which is wholly or partly used or intended to be used for living or sleeping by human occupants.”

It would appear that the Colorado Statute on first-degree criminal trespassing conflicts with the Durango Municipal Code. This conflict occurs in the way that Colorado uses “dwelling” as the place where the trespassing occurs, versus a “premises” where it would occur in Durango city limits.

Since Durango is a home-rule corporation, who’s law takes precedence in these cases? Could a conviction in municipal court that conflicts with state law be appealed in a municipal or state court? I don’t know.

“Place of public accommodation” per Colorado Revised Statute

To further complicate the issue, Colorado Revised Statute §24-34-601 makes it unlawful to discriminate against an individual because of a disability or other reasons specified in the law.

The civil law explains the meaning of a “place of public accommodation.” What it means is any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.

More importantly, the law makes it unlawful to refuse service to a maskless individual who has a medical exemption.

(a)It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.

(b)A claim brought pursuant to paragraph (a) of this subsection (2) that is based on disability is covered by the provisions of section 24-34-802.

Civil fines for discrimination based on a disability

(1)It is a discriminatory practice and unlawful for any person to discriminate against any individual or group because such person or group has opposed any practice made a discriminatory practice based on disability pursuant to part 5, 6, or 8 of this article, or because such person or group has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted pursuant to part 5, 6, or 8 of this article.

(a)A qualified individual with a disability, as defined in section 24-34-301 (5.6), who is subject to a violation of subsection (1) of this section or of section 24-34-502, 24-34-502.2, 24-34-601, or 24-34-803 based on his or her disability may bring a civil suit in a court of competent jurisdiction and is entitled to any of the following remedies:

(I)A court order requiring compliance with the provisions of the applicable section;

(II)The recovery of actual monetary damages; or

(III)A statutory fine not to exceed three thousand five hundred dollars.

(b)For a claim brought pursuant to paragraph (a) of this subsection (2) for a construction-related accessibility violation, the violation must be considered a single incident and not as separate violations for each day the construction-related accessibility violation exists.

(I)A small business defendant is entitled to a fifty percent reduction in a statutory fine assessed pursuant to subparagraph (III) of paragraph (a) of this subsection (2) if it corrects the accessibility violation within thirty days after the filing of the complaint.

Adam Howell is a writer who believes in free press and the importance of the constitution. He can be reached by clicking on this link to the contact page.