Fight over face-mask mandate goes to appeals court

TALLAHASSEE, Fla. - A battle about the constitutionality of a Leon County ordinance that requires people to wear face masks to try to curb the spread of COVID-19 is headed to a state appeals court.

Plaintiff Evan Power, the county Republican Party chairman who is teaming with state Rep. Anthony Sabatini, R-Howey-in-the-Hills, to challenge the ordinance, has filed a notice that he is taking the case to the 1st District Court of Appeal. That notice came after Leon County Circuit Judge John Cooper last week issued a 27-page final judgment rejecting arguments that the ordinance violates a series of constitutional rights, including rights to privacy and due process.

The Leon County case is one of several playing out across the state after local governments passed face-mask requirements to try to address the pandemic. The notice of appeal, as is common, does not detail the arguments that Power and his attorney, Sabatini, will make at the Tallahassee-based appeals court.

Cooper announced at the end of a July 10 hearing that he was rejecting the challenge but did not enter the final judgment until last week. In it, he flatly rejected the arguments raised by Power and Sabatini, writing that the ordinance “is not beyond all question, a plain and palpable invasion of rights secured by fundamental law.”

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“The temporary mandate to wear face coverings in public, in limited circumstances, is similar to the other health measures designed to protect the public’s health, safety and welfare. E.g., motorcycle helmet laws, seatbelt laws and prohibitions against smoking in public buildings,” Cooper wrote. “The stated purpose of the emergency ordinance is to limit the spread of this contagious, airborne virus, and the county has provided ample evidence which indicates that face coverings may assist in reducing the spread of COVID-19.”

But during the hearing last month, Sabatini described local mask requirements as a “novel step for government to take.” He also drew a distinction between the smoking ban and an ordinance that deals with what people “attach to your face.”

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The Leon County Commission passed the ordinance June 23 amid a surge of coronavirus cases in the state. The ordinance requires people to wear masks inside businesses, with some exceptions. Violators can face a $50 civil fine for a first offense, a $125 fine for second offense and a $250 fine for third and subsequent offenses.

Leon County and other local governments have passed such ordinances as Gov. Ron DeSantis has rejected calls for a statewide face-mask mandate.

In the judgment last week, Cooper wrote that it “is clear that the county’s interest in minimizing the spread of COVID-19 is a compelling state interest.”

“Florida, including Leon County, has recently experienced a surge of positive COVID-19 cases,” Cooper wrote. “The emergency ordinance seeks to temper this rise in positive cases and reduce the transmission of the potentially deadly virus among the county’s citizens. Furthermore, it is clear that the emergency order is narrowly tailored to achieve that interest.”