Flagler County Sheriff Rick Staly strongly opposes a mask mandate either enforced by policing or lacking any form of enforcement. His concern is both a matter of constitutionality and enforcement. He made that clear during a meeting with unelected city and county leaders Friday, when that group shot down a proposed order mandating mask-wearing.
But as coronavirus cases surge, and in a surprise move that recognizes the public health urgency of mask protection without turning violators into criminals, Staly is proposing that cities can impose an enforceable mask mandate in public places and private businesses that combines the powers of trespassing with those of code enforcement, without making the non-wearing of masks itself the infraction, and thus steering clear of any constitutional issues.
Staly’s proposal, which he said he would willingly explain before any local government, may provide a pragmatic compromise to cities or the county as they wrestle with what has become a politically divisive issue that often buries public health concerns beneath heaps of more ideologically driven defiance. Three cities’ governments are considering mask mandates this week: Palm Coast on Tuesday, and Bunnell and Flagler Beach on Thursday.
“In my opinion a mask mandate would be overly burdensome to enforce,” Staly said today, referring to the county’s draft order for a mandate, discussed last Friday, “because if you look at the proposal, it had a myriad of legitimate exceptions. In addition of that we’re in a time of great unrest involving policing across America. So then to then make the police an enforcer of a mandatory mask mandate will only exasperate that issue.” Staly also cites the Florida Constitution’s privacy clause, stronger on that score than the federal Constitution, and concerns with costly legal wrangles that could start now and outlast the coronavirus emergency by years.
“What I suggest, if cities or county want to make masks mandatory outside in public area or inside businesses, that they order businesses to post signage and require the wearing of a mask to enter a business,” Staly said, an approach that can be achieved through code enforcement. “The business representative would say: you cannot come in here without a mask, you must leave. If the individual refuses to leave, then you trespass them.” At that point, the sheriff’s office–or city police–can be called in, but to issue a trespass warning, which means the person may not frequent that establishment for a year or more. If the warning is violated, the person may be arrested for trespass violation.
“So it’s not the mask enforcement that we’re handling, it’s now a trespass issue,” Staly said.
But it would also shift some of the burden of enforcement on business owners, who may or may not decide to want to trespass violators. Eric Cooley, who owns the 7-Eleven on State Road A1A in Flagler Beach and a city commissioner there, made the point during that commission’s last meeting on June 25.
“As a business owner, I think the intent is there,” Cooley said, speaking through a mask. “I think that it’s not something we’re going to be able to execute. Even if you want to do it, how is it enforceable? I can tell you with all the influx of visitors we have, I’m just trying to piece this together in my head, what do I do when all of these people are coming through the door every day without masks. I can;t afford to refuse them. I can’t turn all these people away, because it’s massive amounts of people, and I can’t give everybody masks. So I’m just trying to work the practical side of it.” He was reassured when the city attorney described Orange County’s ordinance, which mandates masks but doesn’t require businesses to enforce them. “I was worried about to be the mask enforcer guy, and that’s very scary, that gets ugly,” Cooley said.
But that gets back to the sort of proposal Flagler County Commission Chairman Dave Sullivan proposed and Emergency Management Chief Jonathan Lord drafted.
Last Thursday Sullivan wrote Lord and County Administrator Jerry Cameron, asking for an order mandating masks under the county’s emergency authority, but without fines or punishment for violators. “The time has come and it is urgent that the County make the wearing of face masks mandatory until the current rise of Covid-19 positive cases gets back under control,” Sullivan wrote them. “The current data is clear that the large rise of positive cases nationally is now making its mark in Flagler County. In order to keep the County open as It is I strongly feel mandatory mask wearing will give us a chance to do so. When citizens are inside or cannot social distance outside the masks should must be worn.”
Lord produced the order, and a meeting of the county’s “policy group” was set up for the next day to discuss it. The group periodically gathers county and city executives, emergency, health and law enforcement chiefs during emergencies.
The proposed order calls for mandatory masks indoors for all government facilities or businesses that are open to the public “when not maintaining social distancing,” with 11 exceptions, with no cited penalties for those violating the order, and with plenty of room for interpretation. For instance, no mask wearing would be required if social distancing is respected (though current research and public health officials’ recommendations, even locally, call for mask wearing indoors even when social distancing is respected, because of the way infectious droplets may recirculate through air flows), by anyone eating and drinking, or anyone who may be impaired by a mask “due to an existing health condition.” (See the proposed order below.)
The policy group, which that day included Lord, Cameron, Sheriff Rick Staly, Flagler Beach Police Chief Matt Doughney, Palm Coast City Manager Matt Morton, Bunnell City Manager Alvin Jackson and County Attorney Al Hadeed, but not Health Department Chief Bob Snyder, shot it down as a group, with little varying individual dissent. The strongest voices against it were Cameron, Staly and Doughney, who cited the unenforceability of the mandate. Morton, who’s been a mask advocate, did not push back, and Jackson said it was better not to issue an order and let elected officials vote on it. (Morton and his spokesperson did not respond to calls and texts today.)
“We should spend our time and effort on education because trying to enforce that mandatory I think would b e overwhelming for law enforcement,” Doughney said, citing the possibility that people would be flooding the 911 center with calls reporting non-mask-wearers. “So my stance on it is, education is the key, and I think we need to increase our efforts to reward people that are wearing masks instead of mandating them to wear masks.” Rewards include such things as the county tourism bureau’s Pledge to protect campaign, he said, which recognizes businesses that encourage mask-wearing.
In April, Doughney, after initial resistance, was behind the call to mandatorily shut down the beaches, an order that also applied countywide. Not a single person was arrested as a violator, though the beaches were policed, but with education as the primary aim, not punishment. The same approach would not work with masks now, Doughney said. “That was three months ago, and just going through this for the last three months I think people are worn out. It’s wearing on everybody. I don’t think when we started this out three months ago that the public at least in my mind thought that we would go on this long.”
Staly today put it another way: “The difference between those two was the beach was closed, period, whereas this affects a personal privacy.”
Half of Flagler County’s officially reported infections, now verging on 400, have occurred since the June 5 Phase 2 reopening, the local surge reflecting from a distance the colossal surge in cases statewide, where cases now exceed 200,000, with 70 percent of those occurring after the June 5 Phase 2 reopening, and no indication of a slowdown. The surge led numerous counties and cities to impose mask mandates with varying degrees of enforcement, including several cities in Volusia and St. Augustine in St. Johns.
But uniquely among nations battling the coronavirus (with the possible exception of Brazil, where masks are also divisive), the mask issue has become a polarizing marker sharpened by election-year rhetoric, with opponents of mask mandates often ridiculing masks’ efficacy while calling them infringements on their constitutional rights. The science is strongly on the side of mask-wearing as a public health measure that can significantly lower, but not stop, the incidence of infections.
Mayor Milissa Holland said she is bringing a mask-mandate proposal to the Palm Coast City Council at its meeting Tuesday evening. The Bunnell City Commission scheduled a special meeting Thursday at 5:45 p.m. to consider a mask mandate, which is also supported by Mayor Catherine Robinson and Jackson. And the Flagler Beach City Commission will consider its own mandate Thursday evening as well, behind a proposal from Commission Chair Jane Mealy, though Doughney said he will advise against it. There are no current plans by the county to consider a mandate, though Sullivan said he will wait and see how the cities vote and then consider bringing it up at the next County Commission meeting on July 13.
Meanwhile, Cameron, an arch-conservative who sees masks hiding political agendas, issued a misleading “public service announcement” on WNZF in which he was less interested in encouraging mask-wearing than in claiming, without evidence, that there’d been “posts on social media and blogs that are untrue and causing confusion in our community. Flagler County has not instituted mandatory mask wearing. While we strongly encourage voluntary compliance with all safety guidelines, there are no mandatory requirements to mask wearing currently in place.” At no point in the PSA does Cameron actually encourage mask-wearing, as, for example, public service announcements or videos issued by palm Coast do.
Asked to cite examples of the “social media and blogs” claiming there was such a mandate, Cameron did not respond. (Asked the same question, Julie Murphy, the county spokesperson, wrote: “I am unaware of any PSA where Mr. Cameron makes any such claim.”) Cameron at the Friday meeting had alluded derisively to the FlaglerLive article the day before reporting that Palm Coast, Flagler Beach and county leaders were considering mask mandates. It isn’t clear why he felt compelled to discredit ghost reports of a mandate, or himself confuse the issue ahead of a week replete with local governments voting on just such a mandate. He did not respond to a request for an interview.
“My position on the mandate is that it’s becoming fairly standard across the country to emphasize to the people they need to wear their masks,” Sullivan said today, his position unchanged. “At this point I don’t see it as a big deal, and I don’t think it has anything to do with affecting people’s constitutional rights. Maybe somebody can make that case legally, I don’t know, but this is a medical problem not a check on the constitution.”
“The partners turned down the idea of having a mandate,” Sullivan said of the policy group. “I can’t overcome that, because that’s the group that gets together to make decisions about stuff like that.” But he said he’ll consider it at the commissioners’ level. “We may do it next Monday but I think we have time to decide on that. I don’t totally control the format or anything else. I made my case to our county administrator and he brought it forward to the partners and the decision was not to go forward with the mandate, so at this point I’m not sure where that leaves me.” He added: “If Palm Coast goes to mandatory and then Flagler Beach does, I would think it would be strong pressure for the county to do the same thing.”
Jackson, the Bunnell city manager who was on Friday’s call, agreed with Cameron and Staly that enforcement would be impossible. “But I think it does say to a community that I think that this is very important to do, and even if we just get our [community] full of individuals with who will abide by wearing the mask,” Jackson said, “it’ll make all the difference in the world. But no one is fooled, as public managers we like to bring forth public policy that can be enforced, and I think it’s a policy statements the local governments make–wearing a mask is a very important act in preventing the spread bof the virus. No one disagrees with that.”
Jackson said Friday’s rejection of the order Lord was recommending was not necessarily a rejection of the mandate, but a rejection of a mandate pushed through by such an order (though the county has pushed through numerous such orders since the emergency began). “Our position I believe in our discussion was, we were not going to do that as managers, even though we have the authority to sign certain mandates,” Jackson said. “We feel that our elected officials are the one that needed to basically act on this directly. Because there are pros and cons, not about the health and safety, but how people feel about it. Some businesses could feel that it could hurt business, some folks could feel they have a constitutional right not to be told to wear it. It is definitely a decision the elected officials need to deliberate on and have that public discussion and then make a decision.”
Morton during the Friday meeting also noted that the Palm Coast Council would take up the issue.
The Florida Constitution’s privacy provision aside, opponents of masks in Florida have frequently pointed to a section of state law that forbids the wearing of masks (F.S. 876.12), though typically neglecting to note a subsequent section of the same law (876.155) that specifies that the prohibition applies only to those wearing masks to intimidate, harass, threaten or abuse people, or to commit a crime or interfere with a person’s rights under the law. On June 26 the Florida Supreme Court ruled against a restaurant employee who challenged Gov. Ron DeSantis’s authority to issue shutdown orders in coronavirus-related matters, reaffirming the governor’s emergency powers authority. A lawsuit in Leon County was filed the same week, challenging Leon County’s mask mandate.
Lord’s recommended order is below.