An state appeals court in Tallahassee this week heard arguments in a mask mandate challenge after an Alachua County man’s case had been rejected by lower courts.
The attorney representing Justin Green, the plant nursery owner fighting the county ordinance, argued that requiring mask-wearing goes against rights provided by the U.S. and state constitutions.
“The holding is, as described in the county’s briefs, that citizens’ constitutional rights end where the risk of transmission of disease begins,” said attorney Jeff Childers.
Childers told a three-judge panel on the 1st District Court of Appeal that Green is challenging the order for what he sees as an infringement on the rights of all county residents.
“I think the standard we need to meet is to show that the mask mandate invades historically protected constitutional liberties. If it does, then the county is required to meet a strict scrutiny standard,” Childers told the judges. “The bottom line is that the county has to prove that its mask mandate is effective and necessary.”
Also central to Childers’ arguments on behalf of Green is what the attorney points to as a lack of exception for any crises when it comes to preserving constitutional rights.
“Neither the federal Constitution nor our state Constitution includes any risk of transmission exception, neither the Bill of Rights, nor the Declaration of Rights include a right not to become infected, as the court below explained it,” Childers asserted.
Judge Scott Makar asked Childers to get specific as to what freedoms a mask mandate compromises.
“It might be helpful if you could walk us through a specific, real-life example of how the ordinance affects your client’s well-established, historically rooted constitutional freedom,” the judge inquired.
Childers replied that mandatory covering of one’s face interferes with basic human communication, for starters.
“The mask mandate, No. 1, invades his likeness, which has historically been recognized as a property interest, as a valuable commodity even. It’s protected in Florida statute and, I believe, constitutionally. The mask mandate interferes with speech … literally interferes with speech,” Childers answered.
Childers also argued the mask mandate is “permanent,” as there is no defined end to the ordinance, a point that received scrutiny form the judges.
Defending Alachua County is attorney Jack Ross, who set out to prove the mandate is necessary facing what’s been declared a health crisis – and that the county is within its jurisdiction to order one. He agrees constitutional rights are at issue, but calls the mandate “reasonable.”
“The substantive issue that is before this court, is whether the federal or the state constitution prohibits the citizens of Alachua County, through their elected representatives, from adopting reasonable regulations to restrict the spread of a deadly disease,” Ross argued.
Makar asked what Alachua has on the books, giving it power to enforce a mask mandate: “What about the issue of the county’s authority under its own governing document?”
Ross argued the county statute outlining emergency powers is broad enough to include requiring mask-wearing.
“The authority does fall under 28.071D, which gives the county, in an emergency situation, the authority to regulate and or close down businesses, places of entertainment, public places,” Ross said.
“Now, the concept of regulating, even to the extent of closing down, is certainly broad enough to include authorization to require people who are using those … public places, to wear a cloth or paper covering.”
Judge Robert Long asked Ross if the attorney thinks he’s met the burden of proof showing there’s a “compelling state interest” for masks and have “used the least-restrictive means” of virus mitigation.
Ross: “I do, your honor, under the state of the science as it exists today.”
Long: “Well, under the record evidence that is before this court, do you believe you’ve met that.”
Ross: “I do your honor.”
Long: “Can you tell me why, and how?”
Ross: “Because there is a substantial amount of evidence in the record before this court that masks retard the spread of disease. And there is a substantial amount of evidence in the record before this court that this is a medical emergency.”
As of Tuesday afternoon, the panel had yet to make a ruling in the case.
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