The man who staged a protest against beach closures on July 4th and who was taken into custody last week at a Broward County news conference is back with a new complaint against the country’s latest emergency order, which he says is unconstitutional.
Chris Nelson, the Fort Lauderdale resident behind the group ReOpen South Florida, said he intends to file a lawsuit against the county’s order this week.
His complaint refers to Section 4A of the order, which says that residents of single or multi-family homes must enforce mask mandates on their property, including when they have guests over.
“What this is saying is the property owner is responsible for telling everybody, any person on that property, including family plus guests, that they have to wear a mask,” Nelson said. “So basically, if I want to have anybody come over to my house, I have to ensure they wear a mask and if I don’t and my neighbor suspects I’m not and calls the cops, I’m subject to a legal fine for not making people in my own house wear a mask. This steps way over the line.”
The clause itself states:
Section 4. Responsibility to Ensure Compliance with Applicable Orders. A. Residential Property Residents. All persons who reside on any residential property, whether single family or multi-family, and irrespective of whether they own or rent the property, must ensure that all persons on the residential property, including guests, comply with all applicable guidelines of any Broward County Emergency Order, including the facial covering requirements. Residents who fail to ensure compliance with all applicable Broward County Emergency Orders by such persons shall be subject to the penalties set forth in Section 8-56 of the Broward County Code of Ordinances, with each person present and in violation of an applicable Emergency Order constituting a separate violation.
A county spokesperson referred a Sun Sentinel reporter to an FAQ page that explains that residents are in fact responsible for making sure everyone on the property complies with the guidelines in the emergency order, including the facial covering requirements.
Residents who don’t do so are “individually liable and subject to civil and criminal penalties” and “each person present in violation of Broward County Emergency Orders constitutes a separate violation subject to a $1,000 fine,” according to the FAQ page.
Nelson said Broward County’s order violates constitutional Fourth Amendment rights that protect people from unreasonable searches and seizures by the government, and said it violates the right to privacy in people’s homes.
“They have gone so overboard with violating the Fourth Amendment,” Nelson said. “The Constitution is still in play, even though people act like it’s not. How do they plan to enforce this without breaking the Fourth Amendment?”
Rep. Anthony Sabatini, R-Howey-in-the Hills, said he plans to file the lawsuit against the county’s order this week and will represent Nelson’s cause.
“I just think it’s a blatant violation of due process,” Sabatini said. “People have a substantive right of association and reasonable expectation of privacy. This is a radical step in the wrong direction.”
Sabatini said the ordinance would allow a suspicious neighbor to nark on anyone they suspected had more than 10 people inside their home without masks, and would give police probable cause to get a search warrant.
“It’s such an invasion of privacy,” he said. “The classic case law in privacy is you have the legitimate expectation of privacy inside your own home.”
The suit is the latest pushback against local governments’ efforts to stop or slow the spread of the coronavirus, as Florida continues reporting increases in the number of new coronavirus cases each day.
It is at least the third lawsuit in South Florida over mask requirements. Groups of residents in both Palm Beach and Miami-Dade counties have sued the counties over the orders.
Some lawyers, however, say the lawsuits have no standing and the government does have the right to pass laws in the interest of public health and safety.
“Any state government, through the 10th Amendment, can make a law for which its constitutionality is questioned if there is a ‘rational relation to a legitimate state interest,’” said Malik Leigh, an attorney and former law teacher. “In this case, the state has an interest in public safety during a pandemic. Bill of Rights freedoms are often denied so long as there exists a legitimate reason.”
Government limitations on freedom in the interest of safety and health already exist, such as the minimum drinking age, fire codes and speed limits.
Leigh said: “A person cannot run a red light because they want to express themselves through speed.”
The lawsuit asks a judge to declare the order unconstitutional, Sabatini said.
Broward County Mayor Dale Holness said the county’s attorney’s office will deal with any lawsuits.
Sun Sentinel staff writer Austen Erblat contributed to this report.
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