Florida Judge Upholds Face Mask Order: COVID-19 "justifies governmental intrusion into individual autonomy."

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Palm Beach, Florida attorney Louis Leo IV is representing Plaintiffs suing Palm Beach County over their face mask order. They had asked for the order to be lifted while the case is ongoing but the judge refused. Here is an excerpt from the attorney's press release, then we will go over key parts of the judges ruling, which is quite incredible.


Machovec et al. v. Palm Beach County

"Palm Beach County Circuit Court Judge John S. Kastrenakes unsurprisingly denied our clients’ motion for temporary injunctive relief against Palm Beach County’s unconstitutional mask mandate, paving the way for continued government tyranny under the guise of disease prevention in Palm Beach County. The full order (hereinafter “Order”) is available here.

... For those who missed oral argument on the Plaintiffs’ Motion for Temporary Injunction, it was livestreamed on Facebook and is available for viewing here.... The Florida Civil Rights Coalition intends to appeal the ruling."


In upholding the mask order, Judge John S. Kastrenakes wrote, in part, "The ongoing dire public emergency caused by COVID-19 is precisely the sort of exigent circumstance that justifies govemmental intrusion into individual autonomy. Further, the individual choice to not wear a facial covering, in the midst of a pandemic where asymptomatic carriers can unconsciously and unknowingly spread a deadly virus to others, can hardly be characterized as a "private" or "individual" choice... this Court will not second guess the manner in which a co-equal branch of govemment sought to discharge its sacred duty to protect the general public.... After all, we do not have a constitutional or protected right to infect others. Regulations which remove an individual's discretion to make such choices are both reasonable and pervasive."

Below are more in-depth excerpts from Judge John S. Kastrenakes ruling.

For those interested in this issue, it's important to read and understand the basis and rationale of the judge's decision. We have highlighted the most important parts by preceding the text with three ### symbols, and in bold text. (So for the short version, you can use your find key to read the excerpts that follow the ###.)


Florida Circuit Circus Judge John S. Kastrenakes

"The threat presented by the worldwide COVID-19 pandemic cannot be seriously disputed... Thousands of Floridians have been killed by COVID-19, and many more have been hospitalized.

.. and there currently is no known cure, no effective treatment, and no vaccine. Suffce to say, the COVID-19 pandemic has thrust humankind into an unprecedented global public health crisis.

the Palm Beach County Board of County Commissioners ("BCC") voted unanimously to enact Emergency Order No. 2020-12 on June 24, 2020. Emergency Order 12 ("the Mask Ordinance")

Exceptions to the Mask Ordinance are for children under the age of two years, persons acfiely engaged in socially distant exercise, persons who have a medical condition that makes wearing a facial covering unsafe, and persons who object based on their religious belief.

Plaintiffs, who are Palm Beach County citizens, contest this Emergency Order as unconstitutional and seek an emergency temporary injunction to enjoin its enforcement.

c. Plaintiffs' Position. Plaintiffs argue they have a substantial likelihood of success on the merits because Emergency Order 12 violates two constitutional rights: their right to privacy pursuant to Article I, Section 23 of the Florida Constitution ("Every natural person as the right to be let alone and free from govemmental intusion into the person's private life..." ), and their right to due process pursuant to Article I, Section 9 of the Florida Constitution ("No person shall be deprived of life, liberty, or property without due process of law"). As to their right to privacy, Plaintiffs' argue that the requirement to wear a facial covering in public spaces constitutes an impermissible intrusion into their private lives, including an individual's right to refuse "medical treatment." As a result, Plaintiff s claim that "strict scrutiny" of the Mask Ordinance is required, and that the Order should be enjoined because it does not further a compelling state interest using the least intrusive means.

Plaintiffs also point to the fact that the Mask Ordinance is enforceable by law enforcement, and can result in being charged with a second-degree misdemeanor, and fines ranging from $250.00 up to $500.00. Finally, Plaintiffs argue the public interest is served by preventing the placement of undue and unconstitutional burdens on individuals.

the County asserts that no right to privacy has been infringed by the Mask Ordinance because: (a) there is no reasonable expectation of privacy regarding one's physical appearance in public places; (b) there is no reasonable expectation of privacy in one's decision to unwittingly subject others to illness and death, or otherwise do as one pleases in public; and (c) requiring the wearing of facial coverings does not constitute medical or otherwise intrude upon an individual's right to make private medical decisions.

The County also argues due process has not been violated because Emergency Order 12 is not arbitrary since the govemment has a legitimate interest in protecting public health by stopping the spread of COVID- 19, and both the regulation as well as all stated exceptions have a clear rational basis.

The County asserts there is a clear rational basis for the Mask Ordinance because facial coverings help reduce the spread of COVID-19, and the Court must defer to this conclusion even if reasonable people can disagree about the effectiveness of the chosen policy. Finally, the County argues that Emergency Order 12 would even pass strict scrudny should that be necessary, because the government's interest in preventing widespread death and injury from COVID-19 is compelling, and the Order is narrowly to advance that interest due to its stated exceptions and the County's decision to enact a mask requirement as opposed to other, more drastic measures (such as closing public establishments altogether).

E. Legal Analysis.### Plaintiffs have failed to show, by competent substantial evidence, they have a substantial likelihood of success on the merits or that the public interest would be served by enjoining the enforcement of Emergency Order 12. Like the three other Florida courts which have addressed this issue to date, this Court finds no constitutional right is infringed by the Mask Ordinance's mandate to wear a facial covering, and that the requirement to wear such a covering has a clear rational basis based on the protection of public health. See Green v. Alachua Cty., No. 0102020CA-001249 (Fla. 8th Cir. Ct. May 26, 2020); Ham v. Alachua Cty. Bd. ofCty. Comm 's, No. 1:20cv-00111 -MW/GRJ (N.D. Fla. May 30, 2020); Power v. Leon Cty., No. 2020-CA-001200 (Fla. 2d Cir. Ct. July 10, 2020).

### The duly elected representatives of this county have come to a reasonable and logical conclusion that mandating the wearing of facial coverings best serves their constituents, and neither this Court nor an apparent vocal group of residents has the authority to second guess that policy decision. See Jacobson v. Mass., 197 U.S. 11, 35 (1905); Newsom, 140 S. Ct. 1613 (2020) (citing Jacobson with approval). This Court is not prepared to find that unelected persons residing or remaining in any city or town where COVID-19 is prevalent, and eqjoying the general protection afforded by an organized local government, may nonetheless defer the will of its constituted authorities based solely on their personal disagreement with the manner in which those authorities seek to safeguard the general public. See Jacobson, 197 U.S. at 37.

### To rule otherwise would unravel the very fabric of govemment in the midst of a global health crisis.

... Emergency Order 12 does not infringe any cognizable privacy right of individuals in Palm Beach County. Article I, Section 23 of the Florida Constitution does not guarantee against all intrusion into the life of an individual. City ofN. Miami v. Kurtz, 653 So. 2d 1025, 1027-28 (Fla. 1995) (citing Fla. Bd. of Bar Examiners re Applicant, 443 So. 2d 71 (Fla. 1983)). ###There is no reasonable expectation of privacy as to whether one covers their nose and mouth in public places, which are the only places to which the Mask Ordinance applies. Winfield v. Div. of Pari-Mutuel Wagering, Dept. of Bus. Regulation, 477 So. 2d 544, 547 (Fla. 1985). See, e.g. Picou v. Gillum, 874 F.2d 1519, 1521 (1 Ith Cir. 1989) (rejecting a claim that one has a "right to be let alone" from Florida's helmet laws and stating, "[t]here is little that could be termed private in the decision whether to wear safety equipment on the open road."); Pottinger v. City ofMiami, 810 F. Supp. 1551 , 1574 (S.D. Fla. 1992) (holding that an individual has no legitimate expectation of privacy in such activities as eating and sleeping in public).

### Emergency Order 12 also does not infringe an individual's right to refuse medical treatment. Plaintiffs cite to the Food and Drug Administation's ("FDA") definition of "medical device" to posit that a mask falls within that definition. Whether a mask is a "medical device" is irrelevant to whether the mandated wearing of one is a prohibited "medical procedure." The Court is not persuaded by Plaintiffs' argument that the wearing of a mask is a medical treatment or medical procedure. Moreover, in the case of uninfected or asymptomatic individuals, merely wearing a mask does not address any medical malady of the wearer. Rather, the covering of one's nose and mouth is designed to safeguard other citizens. A mask is no more a "medical procedure" than putting a Band-Aid on an open wound. It is also not close to being analogous to the consequential or invasive medical procedures at issue in other cases addressing the right to medical privacy, such as decisions involving the termination of pregnancies or life itself. Gainesville Woman care, LLC, 210 so. n at 1244;N. Fla. Women's Health & Counseling Servs., Inc. v. state, 866 so. 2d 612, 615 (Fla. 2003); In re T.w., 551 so. 2d 1186 (Fla. 1989); In re Guardianship of Browning, 568 So. 2d 4, 11 (Fla. 1990).

### In fact, wearing a mask or face covering is less intrusive than the preventative measure of placing fluoride in drinking water which has been held by this Distict as not being a medical procedure or being constitutional. Quiles v. City of Boynton Beach, 802 so. 2d 397, 399 (Fla. 4th DCA 2001).

### Second, Emergency Order 12 does not infringe individual's autonomy over their own medical health because, the moment the wearing of a facial covering does implicate the mask wearer's health, they become exempt to the requirement pursuant to Section 4(e)(6) of the Mask Ordinance. This exception vitiates argument that the Mask Ordinance constitutes govemment intrusion into Plaintiffs' medical autonomy. If anything, the County's narrowly tailored regulation has wisely left the Plaintiffs' individual medical autonomy intact.

... The Court finds that Plaintiffs are not substantially likely to succeed with any claim that the Mask Ordinance is unconstituonally vague based on the Court's own reading of the plain language of the Order and the County's common sense responses to the alleged ambiguities.

... The Cout finds that the Mask Ordinance bears a rational relationship to the legitimate government objective of protecting the public health by preventing the spread of COVD-19. See Ham v. Alachua Cty. Bd. ofCty. Comm's, No. 1:20-cv-00111-MW/GRJ (N.D. Fla. May 30, 2020).

Plaintiffs' argument and evidence that facial coverings are unable to completely prevent the spread of COVID-19 cannot establish that Emergency Order 12 is arbitrary or irrational. There may be a healthy public and scientific debate about the precise level of effectiveness of masks to protect the public health in this circumstance. As United States Disfrict Judge Walker observed in Ham, supra, "[the] Court is not tasked with deciding whether the [Alachua County Emergency Order] at issue is a good idea or bad idea." Further to that point, the Florida Supreme Court observed, in discussing the application and restrictions contained within the Youthful Offender Act promulgated by our Legislature, that [clourts will not be concemed with whether the particular legislation in question is the most prudent choice, or is a perfect panacea, to cure the ill or achieve the interest intended. If there is a legitimate state interest that the legislation aims to effect, and if the legislation is a reasonably related means to achieve the intended end, it will be upheld. Jackson, 191 So. 3d at 428.

The fact that the wisdom of a regulation can be disputed does not make it irrational or unreasonable, and this remains pardcularly true during the uncertain fines of the COVID-19 pandemic. see Xponential Fitness v. Wiz, No. CV-20-01310-PHX-DJH, 2020 WL 3971908, at *7 (D. Ariz. July 14, 2020)

### see also S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (stating in the context of a regulation imposing limitations on gatherings of people during the COVID-19 pandemic that, when public offcials undertake to act in areas fraught with medical and scientific uncertainties, the latitude given to them must be especially broad).

In situations such as these, where the potential injury to the public outweighs an individual's right to relief, the injunction must be denied.

As set forth above, Plaintiffs have failed to establish that any constitutional right is implicated by the requirement to wear a facial covering in public. There are also ample exceptions to the requirement. What remains is a de minimus right entitled to little protection — the right to not wear a mask in public spaces. ### Plaintiffs' minimal inconvenience caused by the Mask Ordinance must be balanced against the general public's right to not be further infected with a deadly virus. It is beyond dispute that the potential injury to the public that would result from enjoining the govemment's ability to prevent the spread of a presently incurable, deadly, and highly communicable virus far outweighs any individual's right to simply do as they please. See Green v. Alachua Cty., No. 0102020-CA-001249 (Fla. 8th Cir. Ct. May 26, 2020); Legacy Church, Inc. v. Kunkel, No. CV 20-0327 JB\SCY, 2020 WL 3963764, at * 101 (D.N.M. July 13, 2020) (public's interest in limiting the COVID-19 outbreak in the State outweighs the right to gather for religious services).

Conclusion.

### The right to be 'free from governmental infrusion" does not automatically or completely shield an individual's conduct from regulation. More to the point, constitutional rights and the ideals of limited government do not absolve a citizen from the real-world consequences of their individual choices, or otherwise allow them to wholly shirk their social obligation to their fellow Americans or to society as a whole. This is particularly frue when one's individual choices can result in drastic, costly, and sometimes deadly, consequences to others. See Picou, 874 F.2d at 1521-22.

### After all, we do not have a constitutional or protected right to infect others. Regulations which remove an individual's discretion to make such choices are both reasonable and pervasive. See 509.221 (8), Fla. Stat. (2019) (prohibiting person with contagious disease from working at a public lodging or food service establishment); 384.24(1), Fla. Stat. (2019) (making it urdawful to spread sexually fransmitted disease through intercourse without the informed consent of the other person); 386.202, 386.204, Fla. Stat. (2019) prohibiting person from smoking or vaping in enclosed indoor workplaces).

"[T]here are circumstances in which a public emergency, for instance, a fire, the spread of infectious or contagious diseases or other potential public calamity, presents an exigent circumstance before which all private rights must immediately give way under the govemment's police power." Davis v. City US. Bay, 433 so. 2d 1364, 1366 (Fla. 4th DCA 1983) (emphasis added). ### See also Jacobson, 197 U.S. at 29 ("...in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint.. .as the safety of the general public may demand").

### The ongoing dire public emergency caused by COVID-19 is precisely the sort of exigent circumstance that justifies govemmental intrusion into individual autonomy. Further, the individual choice to not wear a facial covering, in the midst of a pandemic where asymptomatic carriers can unconsciously and unknowingly spread a deadly virus to others, can hardly be characterized as a "private" or "individual" choice.

The County has determined that an individual's decision whether to wear a mask is one of great public concern and grave consequence. In promulgating Emergency Order 12, it has duly utilized its police powers in order to protect the public health.

... Plaintiffs clearly dispute the merit of that action, but their vigorous desire to debate the effcacy or wisdom of requiring masks does not establish that a constitutional right has been violated, or that the govemment lacked a rational basis for its action.

### As this community tries desperately to navigate the tumultuous seas presented by COVID19, it is reasonable and logical that our elected offcials are throwing the citizens of Palm Beach County a lifeline in an attempt to ameliorate the spread of this deadly, unbridled, and widespread disease.

Based on the evidence presented, this Court will not second guess the manner in which a co-equal branch of govemment sought to discharge its sacred duty to protect the general public.

WHEREFORE, it is hereby ORDERED and ADJUDGED that Plaintiffs' Verified Emergency Motion for Temporary is DENIED.

DONE and ORDERED in Chambers, at West Palm Beach, Palm Beach County, Florida, this day of July, 2020.

You can watch the case oral arguments here

Comments

  1. What else would you expect from a fuckin kangaroo court? I don't care. I won't wear one and they can fine me forever and I will not pay one penny of it.

    ReplyDelete

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