Appeals court weighs mask mandate

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As debates continue to flare across the state about mask mandates, an appeals court Monday took up a battle about the constitutionality of an Alachua County order that requires people to wear masks to try to prevent the spread of COVID-19.

A three-judge panel of the 1st District Court of Appeal heard arguments in a challenge that raises a series of issues, including whether the order violates privacy and free-speech rights.

Jeff Childers, an attorney for plaintiff Justin Green, said the county order should be blocked and pointed to the principles of “life, liberty and the pursuit of happiness.”

“The (nation’s) founders would say that life without liberty is not worth living, and life without being able to pursue happiness isn’t worth living,” Childers said. “You cannot prioritize one of those over the others without throwing the entire system out of whack.”

But Jack Ross, an attorney for the county, said a key issue in the case is whether “the federal and/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.”

“We clearly have a medical emergency, which is fraught with scientific and medical uncertainty,” Ross said. “The facts change every day. The science changes every day… The courts are not in a position to make those determinations on a day-to-day basis the way the elected representatives of the people are.”

Green, who operates a nursery business, and Childers took the case to the Tallahassee-based appeals court after Alachua County Circuit Judge Donna Keim in May refused to grant a temporary injunction to block the order, which requires people at businesses such as grocery stores and restaurants to wear face masks.

Along with continued political debates about wearing face masks during the pandemic, mask requirements passed by local governments in several parts of the state have drawn legal challenges. As an example, challenges to mask requirements in Leon and Gadsden counties went to the 1st District Court of Appeal after the lawsuits were rejected by circuit judges.

It remains unclear when the three-judge panel of the appeals court will rule in the Alachua County case.

But during Monday’s hearing, two of the judges, Scott Makar and Joseph Lewis, asked questions that, at times, sounded skeptical of the plaintiff’s arguments.

At one point, for example, Childers said the mask requirement is “rooted in an awful historical legacy,” with masks being a symbol of such things as intimidation and violence.

But Makar quickly interjected, “Those situations didn’t involve a pandemic. I mean, it’s one thing to wear a mask into a convenience store to commit a robbery pre-pandemic. It’s another thing during the pandemic to say, ‘Well, I have to wear a mask now, so therefore I’m going to be mistaken for a criminal.’”

Judge Robert Long, however, questioned Ross about a privacy right in the Florida Constitution.

“Does an individual have the ability to make a decision on their own about what they wear around their head and face without government interference?” Long asked.

“I think there might be some right. I do not think that right is absolute, and I think it depends on the situation and what the basis and the reason for the ruling is,” Ross said. “In this case, the reason is to stop the spread of a medical emergency.”