No teeth behind face mask mandates
Ohio’s mask mandate, it turns out, is more a request than a requirement.
So far, there haven’t been many, if any, legal consequences for those who have defied Gov. Mike Dewine’s order to wear masks indoors in public in COVID-19 hotspots, based on research by the Cincinnati Enquirer in southwest Ohio.
When The Enquirer asked the governor’s office, area health department officials and the Ohio Department of Health whether they could issue a fine to a maskless person, no one could answer with a clear yes or no.
Businesses seem to bear much of the burden and can face consequences, such as loss of licensing and fines for violation notices that go unheeded, if they have employees or customers that violate the mask mandate. But that guy wandering around Kroger or that woman in Walgreen’s without a mask? They’ll face nothing.
For Cincinnati attorney Chris Finney, the answer is clear. The order is unconstitutional, he said.
“It’s more of a plea than a threat,” said Finney, who is a board member of the 1851 Center for Constitutional Law, a Columbus-based nonprofit legal center that has challenged Dewine’s coronavirus restrictions. “We don’t think there was any serious intent to enforce this with criminal penalties or civil penalties. I don’t know how they would do it.”
Dewine’s order doesn’t specify any penalties.
Defiance of a health order is a second-degree misdemeanor, punishable by up to 90 days in jail or a fine of not more than $750, according to state law.
But there doesn’t appear to be anyone willing to enforce that.
Some law enforcement agencies in the region have said they’re not enforcing the mask order, including the sheriffs of Hamilton and Butler counties.
No fines have been issued in Cincinnati, where the city council has given the Cincinnati Health Department clear authority to issue $25 fines for people not wearing masks in public places indoors.
The health department has received 51 mask-related complaints since July 9, according to records obtained by The Enquirer. Inspectors have responded by contacting the businesses where maskless people have been seen and explain the requirements of the city and state, spokesperson Marla Fuller said in an email.
Beyond that, no action has been taken.
Health departments have downplayed the potential of taking legal actions against the maskless. Hamilton County Health Commissioner Greg Kesterman said in a press conference Wednesday enforcing any civil fines on individuals for a health department is “complicated and requires a warrant to be issued.”
“I think it’s important to note, the governor’s order, if you look through it closely, does not include an enforcement section,” Kesterman said. “There is no opportunity for citations with the general health district. The process is actually a little bit more complicated and requires a warrant to be issued.”
Julie Wilson, an attorney with the Hamilton County prosecutor’s office, later emailed The Enquirer and walked back the warrant statement, saying Kesterman misspoke.
Wilson said the order doesn’t have an “enforcement provision.” Whether that means the health department can’t issue any fines to the maskless, she said she doesn’t know.
“All I can say is that the current governor’s order does not have an enforcement provision,” Wilson said in the email. “If we get more clarification from the governor, we will let you know.”
The Ohio Department of Health gave a different answer. In response to The Enquirer’s phone calls and emails, ODH spokeswoman Melanie Amato sent an email saying local health departments do have enforcement authority.
“The method of enforcement will vary according to the circumstances of the violation,” Amato wrote. When asked to clarify, Amato simply sent the Ohio statute that states the health commissioner shall “carry out all orders of the board and of the department of health. He shall be charged with the enforcement of all sanitary laws and regulations in the district.”
Even the governor’s spokesman said the focus of the order isn’t on civil or criminal penalties.
“As the governor says, the law is a teacher,” said Dan Tierney, Dewine’s press secretary. “It did not take large amounts of law enforcement officers. People saw the announcement and started wearing masks. They’ve been doing this throughout the pandemic.”
Tierney didn’t cite any data to back up that statement.
When pressed on what it would take for a maskless person to face any civil or criminal penalties, Tierney said that would only be in extreme circumstances, such as someone refusing to leave a store when asked. And in those cases, it would likely involve other charges, such as disturbing the peace.
For now, the burden appears to be on business owners.
Since Dewine’s mask order went into effect July 9, Hamilton County Public Health has received 187 complaints about local businesses where people were not wearing masks, according to records obtained by The Enquirer.
In five cases, health inspectors sent the business a copy of Dewine’s order.
The businesses were two restaurants, a hardware store, a pet resort and a gas station. All were in response to complaints of employees not wearing masks.
If a business gets multiple complaints and refuses to correct them, the health department sends them a notice of violation. If the business ignores the notice, the case is sent to the prosecutor.
There have been no notice of violations issued in relation to the mask order in Hamilton County, according to Mike Samet, spokesman for the Hamilton County Public Health District.
Blood drives are open today at:
American Red Cross, 995 E. Broad Street, 11 a.m.-5 p.m.
Canal Winchester Community Center, 22 S. Trine Street, Canal Winchester, 1-7 p.m.
Discover Christian Church, 2900 Martin Road, Dublin, 12:30-6:30 p.m.
Polaris Blood Donation Center, 1327 Cameron Avenue, Lewis Center, 12:15-7:15 p.m.
Vineyard Christian Church, 1055 Mcnaughten Road, 1-7 p.m.