Can mask wearing mandates be enforced?

By on December 3, 2020

Nags Head Board learns the answer may be no

(Shutterstock)

At their Dec. 2 meeting, held coincidentally on the same day that Dare County reported a record high 37 cases of COVID-19, some members of the Nags Head Board of Commissioners expressed frustration over people not complying with the state’s mask-wearing requirement. And they raised a question that seems to have no easy answer.

“The question becomes, ‘Do we, through the resources we have, enforce state standards that are being violated?’ ” said Commissioner Webb Fuller. “I really don’t know. I’m not that up on what we are already doing as far as enforcing standards that are already out there.”

On Nov. 23, Governor Roy Cooper issued Executive Order 180 tightening the statewide mandate requiring masks whenever people are with others not in their household. The order gives law enforcement the authority to issue criminal citations to those who fail to wear face coverings, as well as to a business or organization that fails to enforce the requirement. Officers can also enforce trespassing laws against those who fail to wear face coverings and refuse to leave the premises.

Under the state’s COVID-19 County Alert System, Dare County is currently in the Orange Zone, indicating it has substantial community spread of the virus. The North Carolina Department of Health and Human Services suggests officials in those counties should, among other actions, adopt ordinances that allow for the use of civil penalties for enforcement of the statewide restrictions.

But as a practical matter, enforcement of the mask requirement gets complicated. For one thing, issuing a criminal citation is not an effective approach if the district attorney will not prosecute such cases. And, according to some experts, the ability of local governments to take a less heavy-handed approach and issue civil citations may not be a legal option.

At the Dec. 2 meeting, Nags Head Town Manager Greg Sparks said that Nags Head Police Chief Phil Webster had held a discussion with the Office of the First District DA Andrew Womble, and “they declined to do enforcement actions on businesses that fail to follow those guidelines.”

“I think that has been bit of an issue, knowing that your primary enforcement tool doesn’t really seem to be available,” Sparks added. “So, we really have to rely more on education and working with those businesses.” A Voice effort to reach Womble for comment was unsuccessful.

During the meeting, Town Attorney John Leidy also cited a UNC School of Government blog post by Associate Profession of Public Law and Government Trey Allen that suggested a municipality’s hands may be tied if they trying going down the civil, rather than criminal route.

In his blog post, Allen said that some cities and counties are considering what additional steps they could take to reduce the spread of COVID-19.

“One proposal that has received considerable attention would have them impose civil penalties for violations of the Governor’s COVID-10 executive orders…This blog post concludes that [they] probably lack statutory authority to implement that proposal, thanks largely to a legal doctrine that generally prevents them from forbidding conduct that’s already illegal under state law.”

Leidy also explained that a local government can only adopt laws that it has been given express authority from the legislature to adopt, and that the governor’s order is not the same source of authority for the town to adopt its own laws.

“It has to have some other independent source, through the Constitution or through general statutes, in order to adopt the law,” Leidy said in the Voice interview. “And so I think that’s really the reason why we can’t just take the governor’s order and say, ‘Well based on this, we could either just enforce the order or we could use the order as a basis for adopting our own requirements into an ordinance.’”

At the Dec. 2 meeting, Nags Head Mayor Ben Cahoon told fellow commissioners that the town’s focus to this point has primarily been “on guiding the board and staff to conduct public business in the safest way possible…and messaging, messaging, messaging.”

Commissioner Renee Cahoon noted that some businesses, such as Fresh Market, have been doing “a fabulous job.” Others, she said, are not. “It’s a shame that some businesses are not taking it more seriously…It’s unfortunate that every community has those not thinking about their health or other people’s health.”

Summing up his takeaway from the discussion, Fuller said, “I think education is great, but regulation is sometimes a last resort. And it doesn’t even sound like we have that opportunity.”


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Comments

  • KDH beach dogs

    If businesses are not adhering to Governor’s orders yank their business license. If that happens just once the others will comply quickly. Sometimes you have to protect stupid to protect us all.

    Sunday, Dec 6 @ 10:26 am
  • JS

    US Population – 328.2 Million (2019 US Census Bureau.)
    US COVID19 Cases – 14,462,527 (Since 1/21/20 CDC.) 4.4 % Total US Population Confirmed Cases.
    US COVID 19 Related Deaths – 280,135. (Since 1/21/20.) 1.9% Mortality Rate.
    Portion of total COVID Deaths Nursing Home Patients 72,642 (CDC NHSN AS OF 11/22/2020.)
    1.4% Mortality Rate US Population Not Confined To Nursing Home.

    Sunday, Dec 6 @ 6:00 pm
  • Mark Jurkowitz | Outer Banks Voice

    One stat you forgot. About 2,500 Americans, where ever they live, are now dying of the virus every day.

    Sunday, Dec 6 @ 7:16 pm
  • Hank Hill

    If you start pulling business license and fining or even worse arresting people. People are going to rise and throw their asses out of office. I wear a mask everywhere I go but I will stand on the side of freedom against tyranny every single time! All over this country people are rising up, keep pushing and see what happens here! We will no be locked down again and I promise you don’t have enough if we rise up and say enough is enough!

    Sunday, Dec 6 @ 10:26 pm
  • sandflea

    Hank Hill;
    Does that stand against tyranny include standing up against an attempted cou?

    Heres what Debra Birx says (for those of you who don’t know who she is, she is one of Trumps experts on the pandemic and is an authority in epidemiology and pandemics. She is also the one who looked down in horror as Trump asked her if we could shove powerful lights in people and inject them with Lysol or CLOROX):

    “When I go out, I just don’t meet with health care providers and governors and mayors, but I also meet with the community,” Birx said. “And so I hear community members parroting back those situations, parroting back that masks don’t work, parroting back that we should work toward herd immunity, parroting back that gatherings don’t result in superspreading events. And I think our job is to constantly say those are myths.”

    “I think it’s really important that every single person understands that the way this virus is spread is if you’re with anyone indoors without a mask, that’s a viral spreading opportunity,” Birx said. “If you’re outdoors and hugging and kissing individuals, that is a viral spreading opportunity. We have to really understand how contagious, how infectious, this virus is.”

    Monday, Dec 7 @ 12:20 pm
  • Frank Booth

    I hear they are going to try to set up a checkpoint on the island again to only let in residents. Too bad they lost their lawsuit against the NRPOS- won’t be able to keep them out!

    Monday, Dec 7 @ 10:16 pm