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OFFICE OF THE COUNTY ATTORNEY

Andrew J. Meyers 115 S. Andrews Avenue, Suite 423


County Attorney Fort Lauderdale, Florida 33301

954-357-7600 · FAX 954-357-7641

MEMORANDUM

TO: Senator Steve Geller

FROM: Joseph K. Jarone, Assistant County Attorney /s/ Joseph K. Jarone

DATE: November 16, 2020

RE: Constitutionality of Facial Covering Mandates

You had previously requested that the Office of the County Attorney research the issue
of whether there exists a constitutional right to not wear a facial covering and to provide
you with an informal opinion, which we did. Yesterday, you asked that we provide a
written update. As stated below, we continue to be of the opinion that people do not have
a constitutional right to not wear a facial covering outside of their home during pendency
of the COVID-19 pandemic.

State and local governments have broad “police power” authority to adopt regulations to
protect the health, safety, morals, and general welfare of the public. Haire v. Fla. Dep’t
of Agric. & Consumer Servs., 870 So. 2d 774, 782-83 (Fla. 2004). Under the Florida and
United States Constitutions, there is no general “right to be let alone.” See Picou v.
Gillum, 874 F.2d 1519, 1521 (11th Cir. 1989). Therefore, unless some enumerated
“fundamental right” (e.g., the right to vote, free speech, or free religious exercise) is
implicated or a regulation discriminates against a protected class (e.g., race), government
regulation is constitutionally valid so long as it is rationally related to a legitimate
government interest. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4
(1938). This exceptionally deferential standard (called “rational review”) is the same
constitutional standard to which nearly all state and local regulations are subject.

No legal authority stands for the proposition that the refusal to wear a facial covering is
constitutionally protected. As such, a facial covering mandate is subject to the same
deferential rational review standard as almost every other County regulation. The County
has a legitimate interest in protecting the health and safety of its visitors and residents
from COVID-19. Requiring facial coverings, which are believed to limit the spread of
COVID-19, is rationally related to this interest. This is all the Constitution requires.
Broward County Board of County Commissioners
Mark D. Bogen • Lamar P. Fisher • Beam Furr • Steve Geller • Dale V.C. Holness • Nan H. Rich • Tim Ryan • Barbara Sharief • Michael Udine
broward.org/legal
Senator Steve Geller
November 16, 2020
Page 2

In various challenges in Florida and across the country, those opposing facial covering
mandates have largely sought to contrive some theory as to how one fundamental right
or another protects the decision to not wear a facial covering. Common challenges assert
that the wearing (or not wearing) of a facial covering is expressive activity and that the
obligation to wear a facial covering intrudes upon the right to privacy. Courts across the
country have universally rejected these challenges.

As to free speech, challengers have argued that the refusal to wear a facial covering is a
political statement. As was recently held by a federal court in Minnesota, however, there
is nothing inherently expressive about the refusal to wear a facial covering. See
Minnesota Voters Alliance v. Walz, No. 20-CV-1688, slip op. at 29-30 (D. Minn. Oct. 2,
2020). Therefore, the refusal to wear one does not implicate the right to free speech.

Challengers have also attempted to construe the requirement to wear a facial covering
as being prohibited under Florida’s right to privacy. This right protects, among other
things, important personal decisions such as family planning, marriage, and whether to
receive invasive medical treatment. A facial covering requirement has far more in
common with a helmet requirement than it does an invasive medical treatment, however.
See, e.g., Green v. Alachua Cty., No. 01-2020-CA-001249, slip op. at 3 (Fla. 8th Jud. Cir.
Ct. May 26, 2020); French v. City of Jacksonville, No. 16-2020-CA-03786, slip op. 11-12
(Fla. 4th Jud. Cir. Sept. 28, 2020). Just as no privacy right protects someone’s decision
to not wear a helmet, no right protects someone’s decision to not wear a facial covering
in public.

Finally, even if a fundamental right were implicated, no right – not even a fundamental
one – is absolute. During times of emergency, state and local governments have
enormous power to address the emergency, even going so far as to limit fundamental
rights in a manner that would be otherwise impermissible. See Jacobson v.
Massachusetts, 197 U.S. 11, 26-27 (1905); In re Abbott, 954 F.3d 772, 784 (5th Cir.
2020). Therefore, even if some fundamental right did protect one’s decision to not wear
a facial covering, the County could nonetheless require it under these emergency
conditions.

In summary, it remains our opinion that no one has a constitutional right to not wear a
facial covering in public.

We are available to address any questions or concerns you might have concerning this
issue.

JKJ