Visitors walk past face mask signs along Decatur Street in the French Quarter on July 14, 2020 in New Orleans. (Photo by Sean Gardner/Getty Images)
Governor John Bel Edwards’ new mask mandate is getting push back and resistance from officials, businesses and attorneys across Louisiana. A Jefferson Parish law firm is even offering to represent, at no cost, businesses that are reprimanded for violating the mask mandate.
Stephen Petit, an attorney and founder of Petit Law Firm in Harahan, on his Facebook page advised businesses that they can exploit the governor’s statement that people with medical reasons are exempt from the mask-wearing mandate by posting the following statement at their entrances:
“ATTENTION CUSTOMERS: In light of the Governor’s mask orders, all persons entering this business are required to wear a mask. However, if you have a medical condition which prevents you from wearing a mask, you are exempt from this requirement. With respect to the spirit of HIPAA laws and your privacy, we will not ask you about your medical condition. If you enter our business without a mask, we will take that as your representation that you have a medical condition which exempts you from the mask requirement and will welcome you inside to support our business. We thank you very much for your patronage.”
HIPAA, the law Petit referred to, is the Health Insurance Portability and Accountability Act, which passed in 1996 and restricts what health care providers, health insurance plans and health care clearinghouses can do with people’s private medical information.
In that Facebook post, Petit wrote, “If you receive a summons for a violation of the Governor’s mask order and you have a statement similar to the following conspicuously posted on your premises, I will represent you for free!”
And some businesses across the state have been using similar language. Sarita’s Grill & Cantina in Denham Springs and Landry’s Seafood & Steakhouse in Jeanerette have used similar language in messages to customers they left on their Facebook pages.
So this language is popping up all over the state. I’ve seen examples from Monroe, Lafayette and Denham Springs. Surely this traces back to some template, forum or mailing list. pic.twitter.com/GAqP2FKBs2
— Christiaan Mader (@xnmader) July 14, 2020
Petit isn’t a government official, but he joins government officials in various parts of Louisiana who have through their words and their example discouraged others from wearing face coverings. The Centers for Disease Control and Prevention has recommended face coverings because they may help prevent an infected person wearing one from spreading the virus to others.
On Wednesday, July 15, Louisiana Attorney General Jeff Landry issued an official opinion that the governor’s order “does not pass the constitutional test” and “cannot be enforced with criminal or financial sanctions.” Opinions from the state attorney general’s office are advisory and do not carry the force of law, but the opinion calling the governor’s order unconstitutional would likely be quoted by any business owner who files a lawsuit challenging the order.
Gov. Edwards said at a Thursday press conference that his order remains in effect.
In his written opinion, Landry says that his guidance “in no form should be taken to discredit or reduce the significance of any protections taken by an individual, including the wearing of a face mask for the purpose of preventing infection from COVID-19.”
But he later writes, “While face masks may be recommended, the mask mandate cannot be enforced with criminal or financial sanctions.”
Several Republicans in the Louisiana House and Senate have long been scornful of the CDC recommendations regarding face masks, and some who accuse Edwards of overreach have threatened to put together enough votes to strip him of his emergency powers during the ongoing pandemic.
Landry addressed the opinion to Larry Bagley, Rick Edmonds, Alan Seabaugh, Charles “Chuck” Owen, Dodie Horton, Blake Miguez and Beau Beaullieu, all Republican members of the Louisiana House and Robert Mills, a Republican member of the state Senate. Those lawmakers, who have regularly appeared at the Louisiana State Capitol without wearing masks, sought an official opinion from Landry’s office.
Here’s the group of House Republicans who are standing together in support of @RepAlanSeabaugh petition to end Louisiana’s state of emergency because of COVID-19. Looks about like half of the signatures needed. #lalege #lagov pic.twitter.com/4wiDj3lI0W
— Melinda Deslatte (@MelindaDeslatte) June 25, 2020
The Illuminator left multiple email messages and voicemail messages for Rep. Miguez, the head of Louisiana House Republican Caucus, but they weren’t returned. But in a Facebook Post, Miguez expressed agreement with the attorney general opinion. “I know many of my constituents are troubled by the arbitrary limits and mandates unilaterally placed on their businesses by the Governor. Today we learned that much of his executive overreach is likely unconstitutional and unenforceable.”
Even before Landry’s office had issued its opinion, Livingston Parish President Layton Ricks volunteered that parish officials won’t be enforcing the governor’s order — even though Edwards hasn’t asked local officials to oversee enforcement.
In fact, Edwards de-emphasized enforcement. When he announced the order at a rare Saturday press conference, he said, “If the people of Louisiana insist that we enforce our way through it, then we’re not going to be successful.”
Petit, the attorney encouraging business owners to accept that everybody not wearing a mask has a health condition preventing them from doing so, did not return messages seeking comment. But in a follow-up post on his Facebook page, he wrote, ““I couldn’t keep up with arguing even if I wanted to, but I truly don’t want to argue with anyone. I simply want to help businesses who are hurting during this rough time.The Governor’s proclamation states multiple exceptions to the mask requirement and it allows businesses to rely on the representations of the customer as to whether or not the customer has an exemption.”
Petit’s suggestion that business owners should not ask if people have a reason to be unmasked “in the spirit of HIPAA” does not reflect an adequate understanding of HIPPA, said Brietta R. Clark, a professor of health care law at Loyola Law School in Los Angeles. “HIPAA is really not the best law to cite, even in terms of the spirit,” Clark said. HIPAA sets limits on what people in various health care industries can do with information, she said. “It has nothing to do with a business owner or manager interacting with customers.
“I believe the more relevant law, — and it doesn’t necessarily apply either — is probably the Americans with Disabilities Act,” Clark said. “Because that does create protections for people who have disabilities to be able to get accomodation, and there are some limits in terms of how much they have to disclose in order to be able to get those.” For example, Clark said, “People who may need a service dog, you cannot go and question, ‘What is your underlying disability that requires you to have this?’”
But those laws are about disabilities, Clark said, and it’s not clear that they would apply in the context. But her sense, she said, is that privacy isn’t the motivation of businesses that are using Petit’s language. “It feels like what is actually happening is that they’re trying to make it as easy as possible for people to not wear a mask if they don’t want to and therefore make it hard for businesses to enforce health and safety requirements around masks.”
Clark said there are ways to accommodate the medically exempt, including setting up special hours or allowing them to shop by appointment. There are groceries in California, she said, where people without masks are asked for their shopping list and somebody does the shopping for them at no extra charge.
It’s unclear how many business owners are opposed to the governor’s face-mask requirement and how many support it, but when Edwards announced the state’s latest restrictions, Scott Wood, owner of Crewyard Brewery in New Orleans, posted a profane and angry tweet, directed not at Edwards but at all the regular people whose refusal to wear masks he blames for his inability to reopen. His brewery closed down twice because of shutdowns related to the pandemic, and he blames “selfish” Louisiana residents.
“I saw they were shutting down bars again and I got pissed,” Wood said about the tweet. “This is something that we can manage ourselves, but we’re just not doing it because we’re lazy a–holes.”
Courtyard Brewery will be reopened for to-go orders next Friday, July 24, said Wood, but he has a bad feeling that they will not see customers inside like usual for a long time.
“I’m not a constitutional scholar,” he said. “I’m not a lawyer. I’m just a dude who makes beer, but it’s plainly evident that we need to do what we can as individuals to help the greater good, and what we need to do is mask up and socially distance and just be cognizant of our impact on others.”
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