Gov. Cooper’s mask mandate puts onus on business, has enforceability issues

N.C. Institute for Constitutional Law says mask order did not receive Council of State concurrence; pits business against citizens

Gov. Roy Cooper heads back inside the N.C. Emergency Operations Center after speaking during a press conference on North Carolina's coronavirus pandemic response Monday, Jun. 15, 2020 (AP)

RALEIGH — Gov. Roy Cooper’s mask mandate include in his executive order issued earlier this week is being called “unenforceable” by county sheriff’s and by some legal experts.

As of this morning, 16 county sheriffs have stated they will not enforce the mask mandate in executive order 147 with many of them pointing out that the governor’s order has no provision for law enforcement to take action against individuals and is relying on businesses to police their own customers.

Halifax County Sheriff Wes Tripp was the first to make such an announcement, calling it a “personal decision” to wear a mask.

“I certainly encourage people to be careful and take safety precautions, however your Sheriff’s Office will not be taking enforcement actions against people or businesses for not wearing masks. The wearing of a mask is a personal decision, not one of a governor in Raleigh,” wrote Tripp on Facebook.

Other county sheriffs joining Halifax include Alamance, Beaufort, Bladen, Brunswick, Burke, Catawba, Craven, Gaston, Iredell, Lee, Pitt, Union, Sampson, Stanly, and Washington.

Many of the offices included a statement encouraging the use of masks despite refusing to issue citations for non-compliance with the governor’s order.

This is not the first time one of the governor’s orders related to COVID-19 has seen pushback from law enforcement. Sheriffs across the state have refused to cite citizens for attending church services and pressured the governor to amend his order for indoor worship.

In May, Graham County’s sheriff announced that his office would not enforce Cooper’s restrictions on dine-in restaurant service as laid out in his executive orders and phase one plan.

This month, Alamance County sheriff Terry Johnson refused to cite Ace Speedway or its patrons after the track had held racing events drawing a crowd of around 2,000 people.  Johnson said in a statement that “This concerns me greatly to know that my citizens have basically been singled out for the same alleged violations that are occurring all over the state of North Carolina.”

In response, the Cooper administration and the N.C. Dept. of Health and Human Services successfully sued the speedway and closed it down, citing the track being an “imminent hazard for the spread of COVID-19.” During the same time period, George Floyd protests that drew thousands went unchecked in at least five of North Carolina’s major urban areas. Cooper has been criticized for the inconsistent handling of protests during the outbreak.

Jeanette Doran, President of the N.C. Institute for Constitutional Law (NCICL), says that Cooper’s order has two sets of problems, one practical and the other legal. Doran has published an article detailing these issues on the NCICL website.

“One of the practical problems is putting the onus on business to enforce this,” Doran told North State Journal. “I have seen in various news reports that the governor says customers can be cited. That is not what he has in his order.”

Doran pointed out that the second item under the enforcement of face-coverings specifically states that “Law enforcement personnel are not authorized to criminally enforce the Face Covering requirements of this Executive Order against individual workers, customers, or patrons.”

“The only people who can enforce it are the businesses,” said Doran, adding that this could become dangerous, as workers in stores are not trained like law enforcement are to deal with someone who may become violent if confronted.

“It is entirely irresponsible for the governor to put the burden of enforcement on businesses,” Doran said. She said that there were legal ramifications if something did go wrong with the possibility of customers potentially suing employees or both groups possibly suing the business.

The other issues NCICL points out are legal ones, noting that Cooper’s orders are statutorily vague.

“When you read the executive order, you will see for several pages he cites various statutes for his authority but when he gets down to the actual mandates, he doesn’t pinpoint precisely which statute he is relying on,” said Doran. “That makes it incredibly difficult to determine what he thinks his authority is for these orders.”

In her interview with North State Journal, Doran cited that the governor is allowed certain powers under an emergency declaration and that in the sections governing those powers at certain actions require the governor to obtain concurrence from the Council of State.

In her article, Doran says that that the governor “did not get Council of State concurrence for the face covering mandate and doesn’t cite part (b) of the statute for authority.” She goes on to write that Cooper must be relying on other sections for his authority to issue a mask mandate but those sections “do not speak to his authority to commandeer businesses to enforce an executive order.”

Doran said that maybe a “generous reading” of the statute would allow Cooper to order use of masks but she doesn’t see “any way to manipulate those statutes to make businesses his enforcers.”

The inconsistencies and statutory vagueness by Cooper in his orders have given rise to a legal challenge from Lt. Gov. Dan Forest. Doran said it was “unfortunate” that litigation is necessary to get the governor to follow the law, but that “it appears necessary.”

Cooper’s current order also lists eleven exemptions from the face-covering section that cover such things as having trouble breathing, eating, drinking, strenuous exercising, being under 11 years of age, or a child whose guardian is unable to place one safely over a child’s face. Other exemptions include communicating with a hearing-impaired person, giving a speech for broadcast or to an audience, working at home, riding in a personal vehicle or impeding the operation of one, removal for identification purposes,  and anyone who might be at risk from wearing a Face Covering at work, as determined by local, state, or federal regulations or workplace safety guidelines.

Immediately following the list of exemptions, the order specifically states that “Anyone who declines to wear a face covering for these reasons should not be required to produce documentation or any other proof of a condition.”

“The man knows the law,” said Doran of Cooper. “Let’s not forget, he’s been a lawyer for a very long time. He knows those privacy laws. He knows those anti-discrimination laws. That’s not new to him.”

“He’s aware of them and I think that he’s trying to draft around them that way he gets to assert the power and control of the edict,” Doran said.  “And, at the same time, draft them in such a way as to give a court – an activist judge, in particular – wiggle room to uphold them.”

About A.P. Dillon 1257 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_