RALEIGH — Prior to the Thanksgiving holiday, Gov. Roy Cooper announced an executive order containing a stricter mask mandate, which was accompanied by misdemeanor enforcement measures.
Executive Order 180 makes it mandatory to wear a mask or face covering whenever a person is in contact with people who are not of their household, both indoors and outside. As with the previous mask order, the new order “shall be enforced by state and local law enforcement officers.”
The order says that law enforcement can “cite a business or organization that failed to enforce the requirement to wear face coverings.” The order requires police to be called by a business if a person refuses to wear a mask or if that person refuses to leave. That business can be cited and the person can be charged with trespassing and “any other laws that the worker or guest may violate.”
But the enforcement doesn’t end with organizations or businesses. Individuals can also be fined and jailed. The penalty for violating the order is a Class 2 misdemeanor, which means the business or individual cited will likely land in a courtroom and need legal representation. A Class 2 misdemeanor can carry a $1,000 fine and up to 60 days in jail.
Some counties are piling on, adding more penalties and consequences on top of Cooper’s latest mask order.
Buncombe County officials, including Asheville Mayor Esther Manheimer and Buncombe County Commission Chair Brownie Newman, announced on Nov. 25 the creation of an enforcement task force which will “monitor” whether or not businesses are complying with the order.
Manheimer indicated both individuals and businesses not complying with the new mask order “will be subject to penalties.” The first offense will be $50 for a business, and a second offense will force the business to close for a 24-hour period. Any addition violations could result in longer closures.
Buncombe’s actions align with remarks made by N.C. Department of Health and Human Services Secretary Mandy Cohen, who said she has been having “ongoing conversations” with city and county leaders around the state in a push for local ordinances that are more restrictive than the governor’s statewide COVID orders.
Cohen’s ordinance conversations with local leaders is an extension of an Oct. 21 letter sent to 36 counties, which also proposed counties should impose “a civil penalty or fine” for violators.
Whether or not police will enforce the governor’s latest mask order, or how vigorously law enforcement would pursue enforcement, is an open question.
Sheriffs in various counties seem to be telling deputies to be on the lookout for violations and to encourage those without a mask on to wear one, but not to arrest anyone. In June, 16 North Carolina sheriffs refused to act on Cooper’s original mask mandate order, with several calling it “unenforceable.”
The executive vice president and general counsel for the North Carolina Sheriffs’ Association, Eddie Caldwell, issued a letter to members of the association outlining the governor’s latest executive order on masks. The letter noted that masks must now be worn in all indoor spaces and in outdoor spaces when not with members of one’s own household and social distancing cannot be observed.
“At the end of the day, the goal is education and compliance,” said Caldwell.
Caldwell said that if a patron of a business refuses to wear a mask and refuses to leave, they could be cited for trespassing instead of a violation of the mask order. He said the trespassing law is “clear cut” and doesn’t have any exceptions like the mask order does.
Executive Order 169 contains the list of exceptions to Cooper’s mask requirement, some of which are amended by Executive Order 180. The exceptions in EO 169 include a line that states “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 new order does not appear to change that proof stipulation.
The new order targets gyms and fitness centers again due to the removal of the exemption for individuals who are “strenuously exercising.” Additionally, the new order includes private schools as well as public schools, stating that “all workers, teachers, guests, other adults and children five years or older” must conform to the order and wear a mask.
“What the officer on the scene is going to do is what resolves the situation with the least amount of problem,” Caldwell said.
Caldwell said, depending on the circumstances, a couple of responses are possible, including issuing a citation to the violator or the business owner asking a magistrate for a criminal summons or a criminal warrant. A summons orders a violator into court; whereas, a warrant involves an officer taking the violator into custody.
“In most cases, the officer is most likely to issue a citation if they observe the violation,” said Caldwell. He said that if the officer did not witness the violation, it would be up to the business owner or witness to go before a magistrate to pursue the matter with magistrate.
Caldwell said that what was likely “over 99% of the time” is that the person will come into compliance or leave the location.
In a separate guidance letter to NC Sheriffs’ Association members, Caldwell cited two scenarios which were most likely to result in charges: one is a violation of the mass gathering restrictions, and the other is about not wearing a face covering within indoor public places or outdoors where social distancing is not possible.
