Lawsuit seeks to stop Ocala face mask ordinance

Lawsuit seeks to stop Ocala face mask ordinance
Ocala Star-Banner
By Carlos E. Medina
Posted Aug 14, 2020 at 7:45 PM

Ocala-based attorney Christina Miller filed the legal action on Thursday, a day after the Ocala City Council voted to overturn the mayor’s veto of the mandate. Miller V. Ocala (PDF)

An Ocala attorney filed a lawsuit on Thursday seeking a temporary injunction to stop enforcement of the emergency face mask ordinance recently enacted by the Ocala City Council.

The suit, which Christina Miller filed on her own behalf, also seeks to permanently strike down the ordinance, arguing the measure is unconstitutional and an unlawful delegation of powers by the city.

The suit contends that the City Council ordinance shifts the responsibility of enforcement to business owners instead of itself.

"Ocala has not specifically enacted any legislation that actually requires individuals to utilize face coverings," according to the suit. "In a clear effort to circumvent the Constitutional question of governmental powers with regards to face mask mandates, Ocala has instead unlawfully delegated both its powers and responsibilities, of legislating and enforcing individual citizen’s choices with regards to face mask usage, to private business owners.

Additionally, the suit contends that forcing business owners to interject themselves into the private healthcare decisions of residents is unconstitutional.

Among the exemptions in the ordinance is one for those who demonstrate medical conditions that will not allow them to wear a mask. That, Miller argues, puts businesses in conflict with individuals’ constitutional privacy rights.

In the suit, she notes that the burden places business owners in a position that violates both the U.S. and Florida constitutions.

"In the absence of any lawful mandate, Floridians should be free to make their private healthcare choices free from the unwarranted intrusion of unqualified third parties," the lawsuit states.

Miller points out that while courts hearing more than a dozen lawsuits filed against face mask ordinances in other parts of Florida have largely sided with the government, this case was unique because the ordinance is vague and overly broad.

A call to Miller late in the afternoon on Friday was not immediately returned. Similarly, a message sent to Councilman Matt Wardell, who introduced the emergency ordinance, also was not immediately returned.

On Wednesday, the city council voted to override Mayor Kent Guinn’s veto of the ordinance.

The ordinance makes business owners responsible for encouraging face masks or risk a $25 fine. The ordinance compels businesses to post signs stating that face masks are required, to ask customers who are not wearing masks to wear one and to require all employees to wear masks.

But customers can ignore the encouragement, and no penalty can be brought against them.

In defending his veto, Guinn called the ordinance a toothless mandate that was more about symbolism.

"It’s a mandate that you don’t have to follow," he said.

The emergency face mask ordinance passed 4-1 on Aug. 4. On Monday, Guinn vetoed the ordinance, prompting Wednesday’s emergency meeting.

Wardell said the ordinance does not punish businesses if customers decline to wear masks while at their establishments.

On Thursday, Wardell defended the ordinance.

"I haven’t looked at every mask ordinance in the state, but I’ve got to imagine ours (the City of Ocala’s) is one of the softest, given the fact that it doesn’t actually mandate individuals wear a mask," Wardell said.

The lawsuit also comes on the heels of a decision by Marion County Sheriff Billy Woods ordering deputies not to wear masks in most instances and banning employees and visitors from wearing masks inside the sheriff’s office building.

That directive was in direct response to the Ocala face mask ordinance. The move drew widespread national attention as one of the first known public mandates against masks.

On Thursday, Woods eased the mask ban significantly when it came to lobby visitors. Originally, the sheriff’s lobbies were to remain a mask-free zone. Visitors who did not want to remove their masks could sit in their cars and wait for a phone call when it was their turn.

Sheriff’s officials now say visitors must briefly remove their masks to capture their faces on the security camera. After that, they can replace their masks.

The no-mask policy, however, continues for the more than 750 sheriff’s employees. Deputies will not wear masks while on duty, and administrative workers also will remain maskless while in the office. Exceptions to the no-mask policy include sheriff personnel working at the courthouse, the jail, in public schools, in hospitals and in dealing with people suspected of being infected with COVID-19 or at high risk of complications from the disease. Read more

Marion County deputies ordered not to wear masks

Marion County deputies ordered not to wear masks
Ocala Star-Banner
By Austin L. Miller
Posted Aug 11, 2020 at 5:30 PM

Sheriff Billy Woods forbids his employees and those visiting his offices to wear masks in most circumstances as Ocala wrestles with mask mandate.

As the city of Ocala wrestles with an ordinance requiring face coverings for people inside businesses, Marion County Sheriff Billy Woods told his employees they will not wear masks at work and visitors to his office can’t wear masks either.

Woods, in an email dated Aug. 11, said "my order will stand as is when you are on-duty/working as my employee and representing my Office – masks will not be worn."

Ocala City Council passed an emergency ordinance last week requiring people to wear masks inside businesses. Mayor Kent Guinn vetoed it Monday and the council will meet Wednesday to consider overriding the veto.

Marion County set a single-day record on Tuesday for the most deaths related to COVID-19, with 13 more deaths reported.

Ocala and other municipalities in Marion County also advise officers not to wear masks while on duty so their communication to people they encounter is clear. Nationally, there is no consistent approach. Officers have been disciplined for not following state directives to wear masks, but Florida does not have a state-wide order.

Woods has made some exceptions for officers to wear masks while working at the courthouse, the jail, in public schools, in hospitals and in dealing with people suspected of being infected with COVID-19 or at high risk of complications from the disease.

"For all of these exceptions, the moment that enforcement action is to be taken and it requires you to give an individual orders/commands to comply, the mask will be immediately removed," Woods said.

Woods said deputies who work special details or special events won’t be allowed to wear masks unless it falls under the exceptions he provided.

"As for special details and/or any special events (paid or not), masks will not be worn. Effective immediately the entity that has requested and has hired a deputy for a special detail will be given clear instruction by Darian Tucker at the time of their written request that masks will not be worn (unless one of the exceptions above applies). In addition, if you are the special detail deputy you will again advise the contact person that a mask will not be worn by you," according to the email.

The sheriff said if anyone confronts an employee about them not wearing mask, the employee should "politely and professionally tell them I am not required to wear a mask nor will I, per the Order of the Sheriff," and walk away.

"From that point on it will be my burden and responsibility to take care of the person and answer their problem, complaint or their question," Woods said.

For those visiting a MCSO office, Woods said "effective immediately, any individual walking in to any one of our lobbies (which includes the main office and all district offices) that is wearing a mask will be asked to remove it." He added, "in light of the current events when it comes to the sentiment and/or hatred toward law enforcement in our country today, this is being done to ensure there is clear communication and for identification purposes of any individual walking into a lobby."

Woods said MCSO lobbies have barriers that protect employees and the visitors. He said "if a person does not wish to remove the mask they will be asked to leave. If the individual is not comfortable with standing and waiting in the lobby with other individuals, politely ask for their cell number and advise them to stand outside or sit in their vehicle and you will text or call them with their completed transaction."

Woods said the decision was not easy, and pondered on it for the last two weeks.

"We can debate and argue all day of why and why not. The fact is, the amount of professionals that give the reason why we should, I can find the exact same amount of professionals that say why we shouldn’t. Since the beginning of this pandemic the operation of this office has not changed and no wearing of masks has been put in place," he said.

However, public health officials at local, state and national levels consistently advise that there is clear and mounting evidence that face coverings properly used are among the best methods to reduce the spread of the coronavirus.

Woods said at 900 employees, "our number of cases so far has proven that the current way we are approaching the issue is working."

At least 36 employees at the Marion County Jail, and seven outside the jail — including patrol officers — have tested positive for COVID-19. More than 200 inmates have tested positive. An infected nurse at the jail recently died.

Woods ended with, "this is no longer a debate nor is it up for discussion. Please keep in mind this entire pandemic is fluid and constantly changing the way things are done. However, my orders will be followed or my actions will be swift to address."

County Commissioner Carl Zalak told the Star-Banner that he supports Woods’ decision.

"I agree with the Sheriff base on his best judgment and I appreciate the way he handled it," the commissioner said.

City Councilor Matthew Wardell, who sponsored the city’s face mask ordinance, said while the Sheriff’s Office is Woods domain, he disagrees with his stance on mask.

Ocala Police Chief Greg Graham said the department issues masks to officers but while on duty, he doesn’t expect them to wear masks because he wants their orders to be clearly understood.

Belleview Police Chief Terry Holland also said officers on duty should not wear masks so the lines of communications are clear.

Chief Mike McQuaig of Dunnellon Police Department said he doesn’t require officers to wear a mask in their calls-for-service. He too wants the officers commands to be heard clearly.

Both Holland and McQuaig said officers are given masks. McQuaig said if a store requires an off-duty officer to wear a mask, then it’s the officer’s decision on whether to wear one or not. Read more

Is a Florida Chief Judge Taking Cues From a Prosecutor?

Brad King, State Attorney - Fifth Judicial Circuit of Florida 

Is a Florida Chief Judge Taking Cues From a Prosecutor?

Jacqueline Azis, Staff Attorney, ACLU of Florida
& Somil Trivedi, Senior Staff Attorney, ACLU Criminal Law Reform Project
SEPTEMBER 10, 2018 | 1:00 PM

Prosecutors are some of the most powerful elected officials in our country. They decide what charges to file or dismiss, how severe the charges will be, whether to seek cash bail, and what plea offers are made. Through their lobbying associations, they also shape criminal statutes to their benefit, often blocking reforms that the community supports.

But while prosecutors wield immense control over the direction of our criminal justice system, they certainly can’t handpick the judges who hear their criminal cases.

Or can they?

In Marion County, Florida, Brad King — the elected state attorney and the county’s top prosecutor — believed he was losing too often in the criminal cases his office was prosecuting. Instead of upping his game, he managed to shift it in his favor, with the help of a judge whose job it is to guard the integrity of the judicial process.

On July 12, King sent a scathing letter to the administrative judge of Marion County, Judge James McCune, complaining about two of McCune’s colleagues, before whom King and his staff regularly appeared: Judge Robert Landt and Judge Thomas Thompson III. That letter was obtained by the ACLU of Florida through a public records request, and is being publicly released in full here for the first time.

King’s complaints were brazenly self-serving. Of Judge Landt, King asserted that his "rulings on such things as motions to dismiss, motions to suppress evidence, and motions to set bond, and his sentencings, are consistently more favorable to the defense than other judges." King threatened to assign fewer prosecutors to Landt’s docket, because "we expect little in the way of punishment for those defendants." As for Judge Thompson, King complained that he "grants continuance after continuance to defendants," in reference to a tool commonly used by judges to postpone proceedings and requested by both sides to allow proper preparation for trial. In his letter, King also formally demanded that the number of judges in the Marion County Criminal Court be reduced.

After sending his letter, King claimed that his issues with Landt relate to allegations of harassment of King’s female attorneys. However, these allegations were investigated and closed years ago. Moreover, King’s letter makes clear that adverse rulings, not those claims, are the reason King sought Landt’s removal.

Within days of receiving the letter, Chief Judge Sue Robbins, who oversees Judge McCune, gave King exactly what he wanted. Without consulting defense attorneys, whose clients’ cases are directly impacted by these changes, Robbins reduced the numbers of judges in the Marion County Criminal Court from four to two. Specifically, she removed Landt and Thompson — the judges King had criticized in his letter.

The two remaining county judges on the criminal docket both used to work as prosecutors for King. The judges who were removed — Landt and Thompson — were both up for re-election, with primaries on August 28. Landt ran against a current assistant state attorney working under King. That candidate proudly posted Landt’s reassignment letter on his campaign website, boasting that his competitor has been removed from the criminal bench.

It remains a mystery why a chief judge, who is charged with neutral oversight of a judicial district the size of Connecticut, took such an action after receiving King’s letter. Ruling for the defense, or not doling out sufficient "punishment," is not legitimate grounds for removal. This would be true even if the judges were consistently getting it wrong on the facts or the law — but they weren’t. Florida’s appellate courts regularly affirmed these judges over King’s objections.

Going forward, how can people who appear in Marion County Criminal Court feel they are getting a fair hearing or trial — knowing their judges have effectively been selected by the prosecution, or that they might fear removal if they rule on behalf of the defense?

What State Attorney Brad King did — seeking to influence who is on the criminal bench by sending a scornful demand letter to judges — is highly irregular, to say the least. On Robbins’ part, accepting the unreasonable demands of a state attorney is even more inappropriate. Her decision, shortly following King’s request, gives the appearance, at the very least, that she is easily pressured and, at worst, that she is biased toward the prosecution over the accused.

A prosecutor’s grievance should never become policy. Prosecutors aren’t kings and they don’t get to issue decrees. They — and the judges who oversee their cases — are public servants, accountable to us all. Read more