Florida Lawsuit Calls Face Mask Order Unconstitutional

A Florida resident has filed an emergency motion to stop officials of Alachua County from requiring people to wear face masks in public because of the coronavirus outbreak.

The county recently issued Amended Order 2020-21, which (among other things) called for all citizens to wear face masks, “procured at their own cost, when visiting virtually any location to obtain essential services and supplies,” according to the emergency motion for temporary injunction filed by plaintiff Justin Green.

“The requirement is not in the scope of the [Board of County Commissioners’] authority to mandate, imposes undue burdens on each and every citizen of Alachua County, and threatens to undermine the laws of the State of Florida and of the United States,” he argues in his filing.

The order was issued May 4 under the auspices of emergency powers due to the coronavirus outbreak, according to the plaintiff’s motion.

At the time, county officials said it followed the minimum safety requirements issued by the U.S. Centers for Disease Control and Prevention, as well as executive orders that had been issued by Florida Gov. Ron DeSantis (who also is named as a defendant).

A county spokesman told local ABC affiliate WCJB-TV that “the county attorney did ample research before the order was passed and they believe it to be fully legal.”

But Green claims the county’s mandate actually is more restrictive even than those in areas hit hardest by the coronavirus outbreak.

In addition, he says, the “presumptively unconstitutional” order was based on faulty information and “imposes restrictions even where they would provide no medical or health benefit according to the available data.”

That claim is based in part on certain exemptions named in the face mask order.

“Bizarrely, the order exempts persons having Covid-19 — as long as they have another qualifying condition (including ‘anxiety’) — while requiring healthy persons with no Covid and no exposure to Covid to implement medical devices into their personal bodies and eliminate their expressive personality,” Green argues.

In his motion, the plaintiff reports that only 300 Alachua County residents have tested positive during the coronavirus outbreak, and most of them had recovered, leaving 275,000-plus “healthy citizens that do not have Covid and are not a danger to anyone but are forced to wear masks nonetheless.”

Green also claims the face mask order invites “arbitrary enforcement” with the potential for hefty fines and jail time.

“A failure to abide by the mask provision of the order is enforceable by law enforcement, is described as a second degree misdemeanor, and provides for graduated fines of $125 to $500 per violation” and other potential penalties, according to the motion.

Green is seeking an injunction to prevent enforcement of the face mask mandate, claiming the county has overstepped its bounds and is invading his right to privacy.

“This motion is brought on an emergency basis because it is continuing in nature and has an immediate and deleterious effect, depriving Plaintiff of rights guaranteed under the Florida Constitution and the United States Constitution,” he maintains.

The motion further claims no legal remedy could adequately redress Green’s alleged injuries. “It is impossible to retroactively restore Plaintiff’s constitutional rights after they have been violated,” it reads. “Put another way, there is no way a judgment could be obtained to prevent the past deprivation of Plaintiff’s constitutional rights, after the deprivation has already been committed.”

DeSantis and other local Florida officials also have been named in several class action lawsuits related to the coronavirus outbreak. One of those claims addresses alleged inadequacies in the state’s vote-by-mail procedure, which plaintiffs argue is “not equipped to handle the influx of thousands of votes” that will occur under the stay-at-home order.

Another Florida lawsuit was brought by private landowners who claimed a Walton County mandate barred them from using their own beach property. In that case, the plaintiffs say “county officials are essential prohibiting (them) from going out into their own backyards by patrolling their private beaches and threatening them with fines, jail time and arrest.”

For a guide to the myriad legal issues arising nationwide from the coronavirus outbreak, click here.

In the face mask lawsuit, Green is represented by Seldon J. Childers, James W. Kirkconnell and J. Eric Hope of Childers Law LLC. He is seeking both declarative and injunctive relief based on federal and Florida law.

The Florida Face Mask Lawsuit is Justin Green v. Alachua County, et al., Case No. 2020-CA-001249, in the Circuit Court of the Eighth Judicial Circuit in and for Alachua County, Florida.

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