Florida court: county mask mandate “presumptively unconstitutional”

The following is a new analysis.

A Florida appeals court has ruled one county’s series of emergency mask mandates to be “presumptively unconstitutional.”

Alachua County’s mask mandate was in effect for over a year through a series of emergency orders. A local resident challenged the mandate in court in Fall of 2020. He initially lost his attempt to win a temporary injunction, or ban, on the mask policy while the case worked it way through court, then appealed the decision.

Meantime, Florida Governor Ron DeSantis issued an executive order in May that prohibited local “emergency” mask mandates. So the Alachua Board of County Commissioners let its mandate lapse.

The Florida appellate court moved forward and heard the appeal, anyway, reasoning that the governor’s executive order left room for local governments to enact new mask mandates in the future as long as they were done by passing a regular ordinance and not through an emergency order.

The First District Court of Appeal said Alachua County’s mask mandate was “presumably unconstitutional” because it involved a Constitutional right: the right to privacy. As such, it said that mask mandates could not be enforced anywhere in the 32 counties in the judicial district, including in the college town of Gainesville.

The Florida Constitution spells out a person’s right to privacy even more clearly than the U.S. Constitution.

Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.

Art. I, § 23, Florida Constitution

Interestingly, the appellate court compared the mask mandate to a Florida Supreme Court abortion case in ruling that Florida citizens have complete autonomy and control of their body.

The [Florida] supreme court has construed this fundamental right [to privacy] to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect
not to be forced by the government to put something on his own face against his will.

Judge Adam Scott Tanenbaum, First District Court of Appeal, Green v. Alachua County

The judge’s comparison to and alignment with pro-choice law puts opponents to mask mandates, who are more often conservatives, on the side of pro-choice law on this issue.

The appellate decision about Alachua County’s mask mandate conflicts with a separate decision by another Florida appellate court in January that upheld a mask mandate in Palm Beach County.

It is possible the Florida Supreme Court will weigh in on the issue in the near future.

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2 thoughts on “Florida court: county mask mandate “presumptively unconstitutional””

  1. Snort. Only a lawyer would conflate child murder and a reasonable person’s desire to avoid being forced to wear a bacteria laden face mask.

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