Law360 (July 28, 2020, 4:00 PM EDT) --
Under the Florida Statutes, the state government has authority "to protect the public peace, health, and safety; and to preserve the lives and property of the people of the state."
However, multiple lawsuits are pending in various Florida judicial circuits, alleging that local governments have no authority to require face coverings and that the mandates infringe on individuals' constitutional rights. Some claim that masks are ineffective and could harm the wearers' health. Let's take a look at some of these pending cases, starting with Palm Beach County.
On June 24, the county administrator of Palm Beach County issued Emergency Order Number 12, "Additional Directive on Wearing of Facial Coverings," which mandates the wearing of masks, cloth face coverings or clear plastic face shields to reduce the spread of COVID-19. The mandate, originally effective June 25 through July 23, has been extended for another month.
The emergency order provides for law enforcement officers to issue civil citations for fines up to $250 for the first violation and $500 for each additional violation, and each incident of a continuing violation will be deemed a separate additional violation. The order applies to all businesses and establishments in Palm Beach County, affecting "all persons … while obtaining any good or service or otherwise visiting or working in any business or establishment."
Some residents contend that the emergency order infringes upon their constitutional rights and the rights of all people in Palm Beach County. On June 30, four individuals — Josie Machovec, Carl Holme, Rachel Eade and Robert Spreitzer — sued Palm Beach County, alleging that they have been "severely impacted by orders issued by Defendant Palm Beach County that interfere[ ] with [their] personal liberty, and constitutional rights, including but not limited to freedom of speech, right to privacy, … [and] the constitutionally protected right to enjoy and defend life and liberty."
The plaintiffs cite several medical authorities who state that masks are ineffective and can be harmful to one's health. The complaint alleges that masks are "harmful medical devices" and that wearing a mask constitutes submitting to "dangerous medical treatments with well-known risks and potential for serious injuries and death."
They contend that the emergency order infringes upon the "well-settled constitutionally protected freedoms of over a million Palm Beach County residents and visitors, including but not limited to our constitutional and fundamental human right to privacy and bodily autonomy." The complaint requests a declaration that Palm Beach County lacks the authority to require masks and that the order violates the Declaration of Rights in the Florida Constitution, with the plaintiffs seeking a permanent injunction preventing the county from enforcing its mask mandate.
The plaintiffs also filed an emergency motion for a temporary injunction to halt enforcement of the mask mandate while the lawsuit proceeds. They allege that they are being irreparably harmed both physically and legally by the mask mandate.
On July 6, Palm Beach County resident H. Dohn Williams Jr. filed a motion to intervene in the case. He is a senior citizen and suffers from asthma. He is also a practicing lawyer, and claims various coronavirus restrictions have negatively impacted his practice and livelihood. Even so, he emphasizes that he "believes the reasonable restrictions in the Emergency Order are essential to the health and well-being of himself and the large population in Palm Beach County that fall into the Vulnerable, High-Risk Category."
On July 27, Fifteenth Judicial Circuit Judge John Kastrenakes ruled that the plaintiffs do not have a substantial likelihood of success on the merits and denied the plaintiffs' request for a temporary injunction.
The case against Palm Beach County bears some resemblance to a case filed on May 8 by Justin Green against Florida's Alachua County, alleging that the mask mandate in the county's Amended Order 2020-21 is not within the scope the county's authority, imposes undue burdens on the citizens of the county, and threatens to undermine the laws of the state of Florida and of the United States.
These cases are similar to a series of complaints filed by Anthony Sabatini, a Central Florida attorney who is also a member of the Florida House of Representatives. He represents clients in the following seven cases in various counties.
On May 10, David Leavitt, a business owner, sued Seminole County. Leavitt sought emergency injunctive relief and a declaratory judgment to invalidate and prevent enforcement of Seminole County's Executive Order 20-017, which required employees and patrons to wear masks in businesses where employees and patrons are within six feet of each other. The order imposed fines up to $500 per violation, and repeated violations could result in mandatory closure of a business.
Leavitt asserted, "The public has a strong interest in protecting their rights and ability to control their own bodies in the workplace." He alleged that the mask mandate violated the privacy clause and the due process clause of Article I of the Florida Constitution.
Leavitt's complaint stated that "any law that implicates the right [of privacy] … is subject to strict scrutiny and, therefore, presumptively unconstitutional; thus, the burden of proof rests with the State to justify an intrusion on privacy." He contended that the county's "unproven messaging … regarding public 'safety' has not come close to establishing a compelling state interest justifying the intrusion" of mandating masks.
After moving to dismiss the complaint, Seminole County apparently rescinded the mask mandate on June 5 and then replaced it on July 1 with Executive Order 2020-025, which still prescribes masks but primarily treats compliance as voluntary.
On June 17, Linda Cuadros, a travel agent, sued Miami-Dade County, alleging that she is "a business owner who is personally, financially, and negatively affected by the mandate to wear a mask. Additionally, the travel company she owns has been burdened by the mask mandate of Emergency Order 20-20," which she alleges to be unconstitutional.
In a similar case, journalist and broadcaster Carl Jackson sued Orange County, challenging Emergency Order 2020-23 and alleging that Jackson "has been severely impacted by orders issued by Orange County that have caused interference with his personal liberty and business enterprise." The June 21 complaint further asserts that he is "personally and medically negatively affected by the mandate to wear a mask" and that he and other Orange County residents will suffer irreparable harm because their constitutional rights are being violated.
On June 25, political consultant and lobbyist Evan Power sued Leon County, alleging that he "is a business owner who is personally and negatively affected by the mandate to wear a mask contained within Leon County Emergency Ordinance 20-15," which he states violates his constitutional rights.
The same day, farmer Eric Gonyon filed a complaint against Hillsborough County. Gonyon, who owns A Land of Delight Natural Farm, alleges that he and his business have been "negatively impacted by orders that have been issued by … Hillsborough County, that have caused interference with his personal liberty and business enterprise. Plaintiff also has asthma, a breathing condition which makes it difficult to breathe while wearing a mask."
He asserts that the mask mandate is vague, arbitrary and deprives him of due process. He says it is "a radical infringement of the reasonable and legitimate expectation of privacy that most Floridians expect to have over their own bodily and facial autonomy in addition to their medical privacy."
Meanwhile, Jeffrey Nager, a security manager in St. Johns County who suffers from asthma, sued the City of St. Augustine, saying wearing a mask worsens his breathing difficulties and violates his constitutional rights.
Lastly, on July 6, Jason French, a Duval County resident and owner of French Capital Management LLC, sued the city of Jacksonville, alleging that the city's mask mandate is vague and arbitrary and has "caused interference with his personal liberty and business enterprise" and violates his constitutional privacy and liberty rights.
We will not try to predict how the trial courts might rule in any of the pending mask challenge cases, but it seems that some plaintiffs have raised some points that deserve exploration, such as the claim in the Palm Beach County case that wearing a mask may be ineffective and can harm one's health. We imagine that Palm Beach County may raise as an affirmative defense the fact that the emergency order already provides several exemptions, including an exception for people who suffer a medical condition that makes the wearing of a mask unsafe.
Also, some of the cases seem to raise a legitimate question as to why some of the orders exempt county employees from wearing masks. For example, Gonyon's case asserts that, "Hillsborough County has no reason for treating government employees differently and the classification is not rationally related to a legitimate end."
Although masks have become a political issue in some circles, we believe that the courts will focus on the law and the facts. They will consider local officials' concerns for public health and safety and try to balance them against the competing concerns of economic impacts, alleged ineffectiveness or harm and any infringement on individual liberties and constitutional rights.
We can view these issues under two broad categories: (1) the scientific issues about the alleged ineffectiveness of, or potential individual harm from, wearing masks as alleged in the Palm Beach County case, and (2) the constitutional issues raised in those cases and the similar suits filed various counties throughout the state.
As for the medical and scientific issues, the court will likely give some weight to the official guidance of the Centers for Disease Control and Prevention, which cites "emerging evidence from clinical and laboratory studies" supporting its recommendation "that people wear cloth face coverings in public settings and when around people who don't live in your household, especially when other social distancing measures are difficult to maintain."
To weigh the various opposing views as to the safety and efficacy of wearing masks, the trial courts will likely want to receive testimony from experts in the fields of internal medicine and epidemiology. Florida applies the Daubert standard where the trial court acts as a gatekeeper to ensure that "an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." This task "requires more than simply taking the expert's word for it."
Thus, judges will determine whether a proposed expert's testimony "is based upon sufficient facts or data; … is the product of reliable principles and methods; and … [the] witness has applied the principles and methods reliably to the facts of the case." The finder of fact can then determine the reliability and credibility of the competing expert opinions and weigh them accordingly.
As for the constitutional issues, we imagine that the trial courts may look for guidance from a 1905 case in the U.S. Supreme Court, Jacobson v. Massachusetts, where a young man was prosecuted for refusing to comply with a mandatory smallpox vaccination program. He argued that the mandate was an unreasonable invasion of his liberty. However, the Supreme Court upheld the constitutionality of the immunization program as it had a real and substantial relation to the protection of the public health and safety.
The court stated that "the police power of a State must be held to embrace, at least, such reasonable regulations ... as will protect the public health and the public safety." Regarding individual liberty, the court noted, "There are manifold restraints to which every person is necessarily subject for the common good." Similarly, in a coronavirus-related case this year, Maryville Baptist Church Inc. v. Beshear, the U.S. Court of Appeals for the Sixth Circuit stated that "no one ... has a right to expose the community … to communicable disease."
In another case this year, In re: Abbott, the U.S. Court of Appeals for the Fifth Circuit noted that Jacobson supports "emergency exercises of state authority during a public health crisis" and that "under the pressure of great dangers, constitutional rights may be reasonably restricted as the safety of the general public may demand" and "all constitutional rights may be reasonably restricted to combat a public health emergency."
In another COVID-19-related case, S. Bay United Pentecostal Church v. Newsom, where the U.S. Supreme Court denied a request for a temporary injunction regarding limitations on attendance at houses of worship in California, Chief Justice John Roberts stated in a concurring opinion, "Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad."
On the other hand, in a June 3 order in Ham v. Alachua County Board of County Commissioners, where five plaintiffs challenged the constitutionality of Alachua County's mask mandate, a judge on the U.S. District Court for the Northern District of Florida cautioned that "Alachua County does not have unbounded authority in the exercise of its police powers in an emergency." However, the court denied the motion for injunctive relief, finding that the plaintiffs had not satisfied any of the four factors necessary to obtain an injunction. The parties ultimately stipulated to dismissal and the case was closed on July 6.
Florida's trial courts may also find some parallels in the decisions in two recent cases where workers in Palm Beach County sued the governor of Florida to challenge executive orders that affected nonessential businesses earlier this year.
One case, Abramson v. DeSantis, was a petition to the Florida Supreme Court for a writ of quo warranto. On June 25, the Supreme Court denied that petition, concluding that a pandemic is a natural emergency and that the governor has the statutory authority to issue executive orders to address such an emergency under Chapter 252.
The other case, Henry v. DeSantis, was filed in the U.S. District Court for the Southern District of Florida and challenged the constitutionality of the executive orders. The district court dismissed the case on May 14, ruling that the governor's stay-at-home orders were "reasonable and measured, based on data and science, and rationally related to a legitimate end" and did not violate the petitioner's constitutional rights.
Although the pending mask-mandate cases challenge local officials' emergency orders rather than the governor's executive orders, the state trial courts might find some relevant principles in the orders of the Florida Supreme Court and the Southern District of Florida.
We will be interested to see how some of the trial courts might reach differing conclusions, and there will likely be appeals in all five of Florida's district courts of appeal. Some of those appeals may have conflicting results, which could ultimately lead to review by the Florida Supreme Court based on an express and direct conflict between the districts.
Even if there is no eventual conflict, it seems likely that a litigant will be able to obtain Florida Supreme Court review on other grounds under the Florida Rules of Appellate Procedure if the decisions "expressly construe a provision of the state or federal constitution," "expressly affect a class of constitutional or state officers" or "pass upon a question certified to be of great public importance."
Robin Bresky is founder and president, and Randall Burks is a senior associate, at the Law Offices of Robin Bresky.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Fla. Stat. § 252.32 (2019).
 Machovec v. Palm Beach County, No. 50-2020-CA-006920-XXXX-MB (Fla. 15th Jud. Cir. Ct. 2020).
 Green v. Alachua County, No. 01-2020-CA-001249 (Fla. 8thh Jud. Cir. Ct. 2020).
 Leavitt v. Seminole County, No. 59-2020-CA-001136-000-XX (Fla. 18th Jud. Cir. Ct. 2020).
 Cuadros v. Miami-Dade County, No. 13-2020-CA-012841-0000-01 (Fla. 11th Jud. Cir. Ct. 2020).
 Jackson v. Orange County, No. 48-2020-CA-006427-A001-OX (Fla. 9th Jud. Cir. Ct. 2020).
 Power v. Leon County, No. 37-2020-CA-001200 (Fla. 2d Jud. Cir. Ct. 2020).
 Gonyon v. Hillsborough County, No. 29-2020-CA-005234-A001-HC (Fla. 13th Jud. Cir. Ct. 2020).
 Nager v. City of St. Augustine, No. 55-2020-CA-000724-A000-XX (Fla. 7th Jud. Cir. Ct. 2020).
 French v. City of Jacksonville, No. 16-2020-CA-003786-XXXX-MA (Fla. 4th Jud. Cir. Ct. 2020).
 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html (updated July 16, 2020).
 Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 597 (1993).
 Crane Co. v. DeLisle , 206 So.3d 94, 101 (Fla. 4th DCA 2016) (citation and internal quotes omitted).
 Fla. Stat. § 90.072 (2019). See also Sanchez v. Cinque , 238 So. 3d 817, 823 (Fla. 4th DCA 2018).
 See Ramphal v. TD Bank Nat'l Ass'n , 206 So. 3d 172, 173 (Fla. 5th DCA 2016).
 Jacobson v. Massachusetts , 197 U.S. 11, 25 (citations omitted).
 Id. at 26.
 Maryville Baptist Church Inc. v. Beshear , 957 F.3d 610, 615 (6th Cir. 2020) (citation and internal quotes omitted).
 In re: Abbott , 954 F.3d 772, 783 (5th Cir. 2020).
 Id., 954 F.3d at 778 & 786 (citation and internal quotes omitted).
 S. Bay United Pentecostal Church v. Newsom , 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (citations and internal quotes and brackets omitted).
 Ham v. Alachua County Board of County Commissioners, Case No. 1:20-cv-00111-MW/GRJ (N.D. Fla. June 3, 2020).
 Abramson v. DeSantis , No. SC20-646, 2020 Fla. LEXIS 1054 (Fla. June 25, 2020).
 Henry v. DeSantis , No. 9:20-cv-80729-AHS, 2020 U.S. Dist. LEXIS 86396 (S.D. Fla. May 14, 2020).
 Fla. R. App. P. 9.030(a)(2)(A).
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