You Ask, 6 Answers: Is Knox County’s mask mandate legal?

Coronavirus

KNOXVILLE, Tenn. (WATE) — At midnight Friday a mask mandate will go into effect, requiring anyone 12 and older in indoor public spaces to wear a face covering.

Although there are exemptions to this regulation, the Knox County Health Department Director and Ex-Officio member of the Board of Health, Dr. Martha Buchanan, signed the final order Thursday afternoon.

The resolution allows a person to not wear a mask near others in a public place if they are members of the same household. Exceptions allowed by the resolution are given to those who have a medical, physiological or psychological disability that prevents them from wearing a mask, the hard of hearing, and those receiving medical treatment where a mask could hinder that treatment.

Other exceptions are included for those eating and drinking in public and exemptions for those in houses of worship.

The seven-page resolution includes more than two dozen “indoor public spaces” where guests 12 and older will be required to wear a mask.

Once announced, lawmakers and county leaders shared mixed reactions. Some in support, others against the mandate calling it unconstitutional.

What is an indoor public space?

The regulation defines these spaces as “an enclosed area to which the public is invited.” The definition includes, but is not limited to:

  • Aquariums
  • Banks
  • Child care and adult day care facilities
  • Common enclosed areas in apartment buildings, condominiums, congregate living facilities, dormitories, hotels and motels, trailer parks, and other multiple-unit residential or lodging facilities
  • Common-use enclosed areas
  • Convention facilities
  • Public and private educational facilities
  • Elevators
  • Establishments wherein beer or alcoholic beverages are served
  • Factories
  • Galleries
  • Laundromats
  • Libraries
  • Lobbies
  • Museums
  • Pharmacies
  • Places of employment
  • Polling places
  • Private clubs
  • Professional offices
  • Public and private transportation including trains, buses, taxicabs, and airports and ticket boarding and waiting areas of transit depots
  • Reception areas
  • Restaurants
  • Restrooms
  • Retail food production and marketing establishments
  • Recreational facilities
  • Retail service establishments
  • Retail stores
  • Rooms, chambers and places of meeting or public assembly
  • Service lines
  • Shopping malls
  • Sports arenas, including enclosed public places in outdoor arenas
  • Theaters

A full list of can be found online.

No person age 12 or older shall be within 6 feet of any other person, other than someone living in the same household, in any indoor public place within Knox County without wearing a face covering.

Are there exemptions to the mask mandate?

The short answer: Yes.

The long answer: There are specific situations that the Board of Health outlines in the regulation that are exempt from wearing a mask.

  • Persons with a medical, physiological, or physical condition or disability that prevents them from wearing a face covering, including those with a medical condition for whom wearing a face covering could obstruct breathing or those who are unable to remove a face covering without assistance.
  • Any person who is deaf or hard of hearing and for whom wearing a face covering prevents the use of a person’s hearing aid
  • Anyone communicating with a person who is deaf or hard of hearing
  • Anyone who by wearing a mask would be put at risk in their job.
  • Persons actively engaged in eating or drinking in an establishment where beer or alcohol is served, or a restaurant
  • Private homes and residences
  • Hotel and motel rooms
  • Private vehicles, except if being used to carpool or ride share
  • Commercial vehicles when occupied only by the driver
  • Places of worship
  • Nursing homes, retirement homes, long-term care facilities, or assisted living facilities
  • Indoor public places owned, leased, or managed by state or federal government

Is Knox County’s mask mandate legal?

Opinions from multiple lawyers, the county law director’s office, some lawmakers, and the Board of Health are mixed.

Lincoln Memorial University Law Professor Akram Faizer says Governor Lee’s Executive Order 38 gives a few local health boards the ability to customize their COVID-19 response.

“He recognized at that time, I don’t have all the answers, so I’m going to, within my executive order, give some power to local governments to figure out what they can do,” Faizer said.

Knox County Law Director Bud Armstrong told WATE 6 On Your Side Thursday that he was not sure if the mandate was constitutional. He says, because of potential vague language, the mandate may be difficult to enforce.

Armstrong said his job is to defend the constitution and believes a mandate may go beyond the Governor’s executive order. However, he says he did not receive a copy of the signed resolution immediately after the Board of Health meeting and would need to review it as well as listen to the meeting in it’s entirety to make a clearer call.

Armstrong’s concerns, echoed by Deputy Law Director Myers Morton during the Board of Health meeting on Wednesday night.

“It gives the health director the option to go to chancery court and get an injunction. She can’t get an injunction unless somebody is diagnosed with it,” Morton said during the meeting.

Faizer says there could come a time when a statement from Gov. Lee or a ruling from a judge is needed to resolve the constitutionality disagreement.

Are lawmakers on board with a mask mandate?

“All Knox County has asked people to do is take some extra precautionary measure here. personally, i don’t have a problem with that at this point in time,” said Rep. Andrew Farmer.

“If people start getting arrested and fine, and being told to stay in their homes, then you’ve gone too far. asking someone to wear a mask, I don’t think is going to far, and I think it’s within the constitutionality of the Health Department’s authority.”

(R) Rep. Andrew Farmer

“I think the masks are a good idea at this point and time. If I’m going to take, let’s shut the economy down, versus wearing a mask, then, masks all day long. If we can get through this and just help contain this spread of this COVID-19 then that’s what we need,” said Farmer.

Farmer is not only a lawmaker, but practices law, and says the state law allows certain counties to make their own decisions surrounding public health.

Fundamentally, Farmer says, he is against bigger government but supports the decision to mandate masks in Knox County.

Other lawmakers, like Republican Representative Jason Zachary are against the Board of Health’s mandate because, he says, it sets a dangerous precedent.

Zachary suggests that because the Board of Health is not an elected body they should not be able to mandate, but rather, give recommendations.

Zachary said his issue with the mandate isn’t about masks, but implementing a mandate without elected county officials and voters being heard.

Is there a penalty for not wearing a mask?

The regulation states that a person who knowingly fails to wear a face-covering in any indoor public place where the wearing of face coverings is required may be subject to penalties provided by Tennessee state health, safety and environmental protection law (TCA § 68-2-602) — which is “any person who violates a county board of health regulation commits a Class C misdemeanor.”

The penalty for a Class C misdemeanor can include a $50 fine and up to 30 days of jail time. Health board member Dr. Patrick O’Brien said the mandate should be enforced through warnings.

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