County Commission votes to stick with amended mask order

BY JENNIFER CABRERA

During their meeting today, the Alachua County Commission decided to stick with the amended Emergency Order that was issued earlier today. The new order is summarized at the end of this article.

Commissioner Mike Byerly asked how someone would demonstrate that they have a medical exemption to the facial covering order. County Attorney Sylvia Torres said a doctor’s note would “clearly” be acceptable or a person could just state that they have a qualifying condition. Assistant County Attorney Bob Swain said that under the order, businesses are not responsible for enforcing the facial covering mandate. “So if a store decides that it’s not going to allow someone into the store that doesn’t have a mask, that has ADA implications for the store, and they’re going to have to evaluate it… from that standpoint… [Under ADA, they have an] obligation to let people in when they’re not wearing a mask because they can’t discriminate on the basis of disability. They have to engage in the interactive process and say ‘Why do you need this accommodation?'”

The County is preparing an FAQ on this topic, but the bottom line is that someone who is claiming a medical exemption must explain why they need it. Swain said that lying to law enforcement or code enforcement (in the case of a citation for not complying with the facial covering order) “is a crime in and of itself.”

“A lot of confusion”

Commissioner Ken Cornell said he liked the changes that Commission Chair Robert Hutchinson had made. Commissioner Marihelen Wheeler said she was alarmed that the police were being called on the first day of the order. “There was a lot of confusion from messaging from some of the stores, and it’s not just physical health that we’re dealing with here, it’s mental health…”

Hutchinson said “virtually all” the incidents happened inside the City of Gainesville, where there was “very aggressive enforcement by code enforcement officers right from the get-go.” He said the way he intended it to work is if there’s a complaint, the business will get a call from code enforcement with some information about what is expected, then the second complaint would result in a visit. “Only when things rise to the level of aggressive nature should law enforcement be called in.”

That’s where things got complicated because the commissioners were talking about how to manage calls complaining about stores, but the rule is written to place responsibility for facial coverings on individuals. Hutchinson said the signage at the store “determines a lot about how this thing goes.”

Wheeler said each person she’d talked to said that store owners had threatened to call the police because they weren’t wearing facial coverings. Hutchinson repeated his assertion that those incidents likely happened within the City of Gainesville because the City had taken a different approach to the order. Cornell said, “I think we need to take an education approach for the first week.”

“Way out on a limb”

Byerly said “I do not think the science is clear on the efficacy of face masks, and every day it becomes clearer that it’s not clear. The World Health Organization continues to recommend that healthy people do not wear face masks, the studies that have been done are inconclusive and contradictory, so we’re really kind of feeling our way. We’re not sure whether or not face masks really have any significant positive benefit. The most conclusive, the most important study that has shown that it reduces outward transmission, the author of the study concluded that its effect was negligible. So you have to put that on the scale with all the problems that we’re seeing and the complexity of the people with respiratory problems, the fact that it’s going to result in more people touching their face all the time… if you put these things on the scale, then you can’t make a statement like ‘If you’re not wearing a mask, you don’t care about your fellow human beings or other people at the store.’ That is not clear, and we’re way, way, way out on a limb here with what we’re doing in Alachua County.”

The commission also talked about whether swimming pools should be opened, specifically about whether pools are more like gyms (the County’s current interpretation) or more like parks. It sounded like pools could open in the near future, but no decision was made.

Newberry Mayor Jordan Marlowe said the mask order had “caused quite an uproar, especially in western Alachua County,” and his main concern was the enforceability of it. He said it puts business owners in a bind. He agreed with Byerly that to do this, they would need to be “very, very clear on the science, and the science just isn’t quite where it needs to be to make this enforceable.” He suggested that they change it to a strong recommendation to wear a mask and then implement Hutchinson’s suggestion of posting a sign to let customers know whether businesses are requiring masks.

Lorena Holley, General Counsel for the Florida Retail Federation, said there was a lot of confusion and misinformation yesterday. “Even though you noted that the order applies to the individuals, not necessarily the retailers, it is then incumbent on the retailers to enforce the face mask regulation, so to that end, the more information and education that you can put out to the public so that they understand the rules and know before they walk in the store what those are, we would really appreciate it.”

Can retailers ask for details about a medical condition?

Another caller asked how to communicate to a retailer or law enforcement that she has a medical condition. Hutchinson said, “All you have to say is, ‘I have a condition that does not allow me to wear a mask,’ and they are not allowed to say ‘What is your condition?’ and that’s where it ends.” Byerly said that wasn’t what he’d heard from the attorneys and asked for more clarification. Swain later said that a doctor’s note could just state that a person can’t wear a mask, without giving more detail, because the doctor has the information to make the determination that a person shouldn’t wear a face mask. In the absence of a doctor’s note, it’s not clear whether a business can ask about the medical condition. For example, current law says they can’t ask about a service animal, but they can ask for documentation from employees who are requesting an accommodation. Swain said, “In this situation, our hope.. is that people would simply say, ‘I have X’… it would not require a detailed interrogation of the individual.”

Byerly asked whether a person would be required to prove that the face mask is detrimental. Swain said people don’t have to carry documentation on them, but questions could be asked to clarify the medical condition. Byerly asked whether the condition had to be diagnosed by a doctor, and Swain said, “Unless they can state that they have had this happen to them in the past, so there is a reasonable basis to show they’ve had a documented reaction to wearing a mask, or having their breathing restricted, I would say that’s not sufficient because that does not rise to the burden of medical.”

Criminal or civil?

Nick Zissimopulos, a local criminal defense attorney, said there is still a lot of confusion about whether violation of this order is a criminal offense. He said the discussion had been about issuing civil citations, but the order still references §252.50, Florida Statutes, which discusses only criminal penalties. Swain replied that the intent of putting the civil infraction language in the order was to make a civil citation the primary way of enforcing the face mask portion. He said the statute applies to all Emergency Orders, but for practical purposes, Alachua County would be using civil citations to enforce their order. Zissimopulos asked again whether there was potential for people to go to jail under the current order, and Swain said the intent was that the order would be enforced by Alachua County as civil citations (the emphasis left open the possibility that other jurisdictions could make different enforcement decisions). Zissimopulos said the wording of the order gave a lot of discretion to law enforcement to decide whether to use criminal or civil penalties “in very tense situations.” He asked them to make it clear that it should only be civil.

Near the end of the meeting, during commission comment, the face mask order came up again. Wheeler said she was concerned that altercations between retail employees and people who aren’t wearing masks could turn violent, and she sounded like she was leaning toward voting to change the face mask order, but Cornell said he didn’t want to change it so soon, Hutchinson disagreed with Byerly about the efficacy of face masks, and Commissioner Chuck Chestnut didn’t say anything, so Byerly didn’t make a motion.

Summary of changes to the Emergency Order

The changes include clarification on the requirement to wear masks, and rules for childcare facilities and hospitals. The changes to items 7. and 8. of the original Emergency Order are in bold below.

7. Essential Services and Activities, and retail establishments shall limit occupancy, to one per five hundred square feet of covered space. In no case does this allow more than Executive Order 20-112. The business shall also be responsible for ensuring that appropriate social distancing be followed. Restaurants may open at 25% occupancy but, as set forth in the Governor’s Executive Order 20-112, must follow appropriate social distancing in seating. Outdoor seating does not count against indoor occupancy but must meet the requirements of social distancing set forth in the Governor’s Executive Order 20-112. The occupancy limits, for purposes of the one per five hundred square feet of covered space standard, do not include members of staff as long as they are able to comply with appropriate social distancing techniques under the circumstances. The limitations regarding essential services do not apply to Hospitals or other medical facilities following appropriate use of PPE as required by their licensing bodies. Child care facilities may use reasonable occupancy limits as allowed by their license and their ability to use PPE on the part of staff and after screening the children for at risk exposure.

8. Use of face coverings and personal protective equipment

a. Persons working in or visiting grocery stores, restaurants, retail facilities, pharmacies, construction sites, public transit vehicles, vehicles for hire, along with locations where social distancing measures are not possible shall wear facial coverings as defined by the CDC.

b. Face covering includes any covering which snugly covers the nose and mouth, whether store bought or homemade, and which is secured with ties or ear loops. Examples of compliant home-made masks may be found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html. Persons should not utilize N95 rated masks, as those are critical supplies for health care workers, police, fire, emergency management, or other persons engaged in life/safety activities. Persons who wear face coverings should review the CDC and Florida Department of Health guidelines regarding safely applying, removing, and cleaning face coverings.

c. A face covering shall not be required for children under six, persons who have trouble breathing due to a chronic pre-existing condition or individuals with a documented or demonstrable medical problem.

d. This Order does not change or alter any social distancing requirements imposed by this or in any other Emergency Order.

e. Face masks do not have to be worn while eating or drinking.

Read the entire Amended Emergency Order