Action News Jax Investigates: Masks and your rights

JACKSONVILLE, Fla. — Action News Jax is investigating the legality of Jacksonville Mayor Lenny Curry’s so-called “mask mandate.” It was issued as part of a proclamation on June 29 that requires you to wear a mask indoors if you cannot socially distance.

The proclamation does not appear to have an enforcement component -- although the city says it does -- but is choosing not to issue fines.

“Ben, what they are trying to do is convince you they have authority where they don’t,” Action News Jax Law & Safety Expert Dale Carson said.

Becker spoke with Carson after a Twitter exchange Becker had Thursday night with Curry’s Chief of Staff, Jordan Elsbury. He refuted Becker’s tweet the previous day that said the “mask proclamation does not have an enforcement component” and Becker went on say that’s because “it is a proclamation as opposed to an executive order.”

Becker’s tweet was based on Action News Jax sources. In addition the City had told Action News Jax “no fines will be given.”

Elsbury shot back at Becker, saying both have the same administrative enforcement capabilities and told Becker to “do the homework next time.”

“How many people are going to look at the Charter?” asked Carson “Ben Becker is.”

Becker did, with the help of Carson after Elsbury cited in another tweet two specific sections of Chapter 674 of the city ordinance that the mayor did not cite in the proclamation, which are about minor violations and civil penalties.

But in Carson’s opinion, those don’t apply because of a section in 674.302 -- requirements for declaration.

It says in part “there has been an act of violence.” It goes on to say there needs to be “a clear and present danger of a riot or other general public disorder.”

“This was designed to protect citizens if there when riot or civil disturbance nothing to do with pandemic or epidemic,” Carson said. “If you find the word ‘viral contamination’ in 302 they are on good solid ground, but it isn’t in there Ben.”

Becker e-mailed Jacksonville’s Office of General Counsel Jason Gabriel, who is the City’s top lawyer. He sent Becker a statement about those two sections referenced earlier that were cited by Elsbury.

Gabriel’s interpretation is “these are two very broad categories” and that “the mayor is delegated the executive power to assess a given situation, and proclaim an emergency if the conditions warrant it.”

Here is Gabriel’s full response to Becker:

“Chapter 674 in the City’s Ordinance Code derives its authority from Chapter 252 Florida Statutes, to allow for the continuity of government and application of emergency management procedures in times of disasters. Some version of this local emergency management law has been on the City books since at least the 1970s.

“The chapter contemplates two general types of emergency situations: natural disasters and civil unrest (or man-made). These are two very broad categories that (because of their very nature) are not limited by the law in terms of size, frequency, type and level. They can run the gamut from hurricanes and disease (natural) to terrorism and violent protests (man-made).

"It's incumbent on the local government to come up with an emergency plan to take into account emergency contingencies to mobilize government in such a disastrous event. Part of that planning includes vesting the executive branch of government with the responsibility, authority and dexterity to be able to operate in a nimble and effective manner during the pendency of the event. This is a standard Federal and State model that the City follows.

“Accordingly, in Jacksonville, the Mayor is delegated the executive power to assess a given situation, and proclaim an emergency if the conditions warrant it.

“In this case, based on the information he received from the medical community and others, he deemed it necessary to: (1) proclaim the emergency -- in the best interests of the public health, safety and welfare of the City -- and (2) order / implement the mask policy; Emergency Proclamation 2020-005 did those two things.

“Each emergency involving a natural disaster (hurricanes over the years, the recent health/disease/pandemic-related ones) or man-made one (civil unrest, curfew related ones) have followed this same protocol and plan.

“Which brings us to the enforcement and penalties associated with these emergency measures. Sections 674.401 and 674.404, Ordinance Code (the same chapter as the declaration of emergency and associated powers sections) authorize a series of enforcement powers for any emergency measure issued under the Chapter. The one relevant to the mask provision states, a person who knowingly and willfully fails or refuses to obey, observe or enforce the provisions of an order, directive or regulation issued by the Mayor shall be guilty of a Class D offense (up to $500 fine or 60 days imprisonment).

“Every single emergency measure issued under Section 674, Ordinance Code -- all the ones Jacksonville has seen in the past several years issued by the Mayor -- has with it the commensurate authority to enforce under the Chapter. This one is no different.

“Therefore, the Mayor can designate City officials or law enforcement to enforce the mask mandate if warranted. Enforcement is always discretionary, and the authority is there to issue fines if the Mayor believes people aren’t taking this order seriously.

“As a side note, several other jurisdictions throughout Florida have issued similar emergency measures.”

If you do not obey, potentially you “shall be guilty of a Class D offense (up to $500 fine or 60 days imprisonment)” if it’s enforced.

Becker spoke later to Carson, once he received this response for his rebuttal.

“It’s the rule, but I wouldn’t say the law,” Carson said. “But until someone challenges it, people ordinarily have to abide by it.”

Becker asked, “Someone might disagree but it’s not worth trying to fight City Hall?”

Carson said, “That’s exactly right, fighting City Hall is a losing battle.”

However, State Representative and Attorney Anthony Sabatini has filed a lawsuit on behalf of a local small business owner, against the City of Jacksonville, saying the mask mandate is unconstitutional and unlawful.

He made the announcement at a rally in front of the Duval County Courthouse on Monday with dozens of people who supported him.

“We’re asking for essentially one of two things,” Sabatini said. “Either amend this proclamation and just go back to a recommendation of mass that they want to recommend, that that’s totally fine if they want to incentivize people to work. That’s fine. Business owners and workers and individuals should be in charge of that decision.”

Jason French, the owner of French Capital Management, says he does not have an issue with masks, but is worried about other consequences.

“If you want to have a face mask on, that’s fine. You can go ahead and have it. But it should be our option to wear face masks if we so deem.”

The city has responded, saying it is an irresponsible lawsuit.

“At a time our City is facing not only a public health crisis, but severe budgetary constraints as a result of the virus, an elected official filing a lawsuit that will further strain taxpayers resources seems irresponsible. As we do with all Executive Orders, we worked closely with our Office of General Counsel to ensure compliance with applicable laws,” Elsbury said.

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