In a two-page Feb. 17 notice, a group of petitioners asked the state high court to review the January decision by an intermediate appellate court to shoot down a bid by several residents to block the mandate.
In a 7-0 vote, Palm Beach County commissioners enacted the emergency order in late June as COVID-19 cases in the county were surging, and since then, the commissioners have extended it seven times through at least Feb. 19. Its initial enactment drew national attention when members of the public lambasted the board during the meeting when it was approved, raising conspiracy theories and in one case accusing the commissioners of "practicing the devil's law."
The order requires individuals in the county to wear facial coverings in all businesses and establishments, government and municipal facilities, public spaces where social distancing is not possible and on public transportation. But it also includes exemption provisions for certain individuals as well as a broad definition of "facial covering."
Days after its enactment, five residents sued the county, claiming the emergency order violates their right to privacy, as protected by the Florida Constitution, and their due process rights, and they sought an emergency temporary injunction lifting the county's restrictions until the case has been fully litigated.
However, a trial judge denied the residents' request, finding that it was against the public interest and it was unlikely they would win their claims. The residents appealed the denial, but in January, the appellate court sided with the county.
In a 10-page opinion, the intermediate appellate court said the Florida Constitution's protection of a person's "right to be let alone and free from governmental intrusion into the person's private life" is not absolute.
The opinion said although courts can consider a person's subjective expectation of privacy in deciding constitutional objections to local government mandates, the final determination of an expectation's legitimacy has a "more global view" that must be put in context of a society and its values.
The opinion quoted from its 2002 decision in Jackson v. State , and its 1983 decision in Davis v. City of S. Bay , adding "there are circumstances in which a public emergency, for instance ... the spread of infectious or contagious diseases or other potential public calamity, presents an exigent circumstance before which all private rights must immediately give way under the government's police power."
In its analysis, the appellate court also said cases the residents had cited on the right to choose or refuse medical treatment did not apply because they involved plaintiffs "contesting efforts to impose invasive procedures."
Additionally, the appellate court rejected the residents' arguments that being required to wear masks constitutes "forced medical treatment." Such a depiction distorts the nature of the mask ordinance, which aims to stop the transmission of a deadly virus and not to treat a medical condition, the opinion says.
The January appellate court ruling has since been cited by a Florida federal judge in a decision to dismiss a Miami strip club's lawsuit challenging an emergency curfew related to COVID-19. In that case, the judge found that the measure was enacted in good faith and did not intrude on constitutional rights without adequate justification.
The county said Friday the county attorney's office does not comment on ongoing litigation. Counsel for the residents didn't immediately respond to requests for comment.
The residents are represented by Jared H. Beck, Elizabeth Lee Beck and Victor Arca of Beck & Lee Trial Lawyers, Joel Medgebow of Medgebow Law PA and Louis Leo IV of Florida Civil Rights Coalition PLLC.
Palm Beach County is represented in the lower court by Assistant County Attorneys Helene C. Hvizd and Rachel Fahey.
The case is Josie Machovec et al. v. Palm Beach County, case number SC21-254, in the Supreme Court of Florida.
--Additional reporting by Nathan Hale. Editing by Stephen Berg.
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