Local attorney sends demand letter to County Commission
May 6, 2020
BY JENNIFER CABRERA
Jeff Childers, of Childers Law in Gainesville, has sent a demand letter to Alachua County Attorney Sylvia Torres, asking the County Commission to amend or vacate portions of the Emergency Order that requires citizens to wear facial coverings. Childers says these provisions are constitutionally problematic, and he plans to proceed with a lawsuit based on the claims in the letter.
In the letter, Childers says the requirement violates the Takings Clause, which states (loosely) that private property shall not be taken without compensation or due process. He says that requiring citizens to purchase masks under threat of criminal prosecution is a “taking.”
The second argument is that the order violates the right to privacy in the Florida Constitution. To justify violating this right, the state is obligated to meet a “strict scrutiny” standard, showing that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means. On top of that, when strict scrutiny is involved, the offending legislation is presumed to be unconstitutional, so the burden of proof in this case is on the County. Childers wrote, “While a ‘compelling State interest’ clearly exists, the County cannot show that the Order’s mask requirement is narrowly tailored, necessary, or uses the least intrusive means.”
Childers continued, “And the mandate is impermissibly vague and/or overbroad in that it criminalizes otherwise ordinary conduct; i.e. a healthy, non-infected person who is not sneezing or coughing entering a restaurant, store, etc., could be imprisoned for failing to wear a mask.”
In a statement to the Alachua Chronicle, Childers wrote, “To their credit, the County made some positive changes in response to my demand letter. Some of the changes appear to directly respond to the arguments raised in the demand. In any event, the constitutional problems remain, and we are now fairly certain that the County lacks authority to mandate the use of masks under its charter. Even its emergency powers, broad as they are, fall short of providing authority for the County to micromanage the personal medical decisions of its citizens. My take, for now, is that if the Board of Commissioners believes we need mandatory masks here—setting the constitutional issues aside—they have to go to the State. They simply don’t have this authority as one of their enumerated powers.”
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