Cooper’s Face Mask Order Raises Questions of Enforcement | Beaufort County Now | Gov. Roy Cooper’s order mandating face coverings puts businesses in the precarious position of enforcing the law, some legal experts say. | carolina journal, governor, roy cooper, face mask order, questions of enforcement, june 29, 2020

Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Lindsay Marchello.

    Gov. Roy Cooper's order mandating face coverings puts businesses in the precarious position of enforcing the law, some legal experts say.

    On June 24, Gov. Roy Cooper paused his three-part reopening plan. COVID-19 metrics were heading in the wrong direction, the governor said during a news conference. To stifle new cases, Cooper issued a statewide executive order requiring face masks in public.

    Beginning 5 p.m. Friday, June 26, customers and employees are required to wear face coverings in grocery stores, pharmacies, retail stores, restaurants, and other businesses.

    The order doesn't authorize law enforcers to cite people who violate the rule. Law enforcement can still charge people with trespassing if they refuse to leave a business for not wearing a mask.

    But businesses are mainly responsible for enforcing the order.

    This puts businesses in a no-win situation, said Ray Starling, general counsel for the N.C. Chamber of Commerce.

    The business community isn't against wearing masks, Starling said, but requiring business owners to enforce the rule, while not requiring the same of law enforcement, is misguided.

    Businesses are bearing the brunt of this order, Jeanette Doran, president and general counsel at the N.C. Institute for Constitutional Law, told Carolina Journal.

    "If a customer isn't wearing a mask, the business could be charged, not for failing to wear a mask, but rather for failing to enforce the order that the customer wear a mask," Doran wrote in a blog post. "It's essentially third-party liability but in a criminal context created by an executive order of dubious validity."

    Businesses face legal consequences. But they also risk their reputations, Starling said.

    "We live in an environment where 20-second video can be widespread in minutes, if not hours," Starling told CJ. Confrontations between employees and customers can, and have, gone viral.

    The face mask order has a medical exemption, which puts businesses in another difficult position, Doran said.

    Under the Americans with Disabilities Act, businesses can't ask too many questions about a customer's health, Doran said. Employees can't challenge someone who says they have a medical condition exempting them from wearing a mask, she said.

    Andy Ellen, president and general counsel of the N.C. Retail Merchants Association, agrees that business owners face tough choices.

    In a news release issued late Friday, Ellen said merchants have suffered from the economic shutdown and must juggle complying with the governor's order while regaining the trust of their customers.

    "These businesses need your help both economically and with compliance with the face covering requirement. These businesses simply cannot afford a civil penalty or a criminal penalty because of customers not abiding by [the] Governor Cooper's Order," the release said.

    "We ask you to be patient with retailers and their employees. ... Please wear a mask or face covering and be considerate if you are asked to do so when you are shopping. Also, we can't all know the reason another customer isn't wearing a mask, such as due to a health condition, so be kind to each other."

    Some businesses aren't willing to take on the role of enforcer.

    Harris Teeter Supermarkets, a grocery chain based in Charlotte, says it won't force customers to leave if they don't wear masks. The grocer's policy tells employees to offer a free, disposable mask to a mask-less customer. Customers can decline the offer and still shop in the store.

    "Our associates are not authorized nor qualified to ask an individual to present proof that they qualify for an exception," Harris Teeter said in a statement to WCNC Charlotte.

    On their FAQ page, Walgreens Pharmacy says it will advise employees not to confront customers about face masks. Employees also won't prevent maskless people from entering stores.

    At least five N.C. sheriffs said they won't enforce the face mask order, either. The list includes Burke County, Halifax County, Craven County, McDowell County, and Sampson County. Rockingham County Sheriff Sam Page said Friday that he won't enforce Cooper's order requiring people to wear masks in public, writes Rockingham Now.

    Page also said he won't enforce crowd limits on wedding receptions, despite the health department's opinion that such events should be limited.

    Sheriffs enforce some things more vigorously than others, said Eddie Caldwell, executive vice president and general counsel for the N.C. Sheriffs' Association.

    "Each sheriff has to decide what the priorities are within their community," said Caldwell.