Businesses Already Have the Ability to Mandate Mask Wearing on their Premises--Under Federal Law

Most citizens, myself included, support the CDC guidelines on mask wearing.  But most of the citizens that have contacted our office have voiced opposition to making "mandatory mask-wearing" ordinances that could lead to fines and citizen arrests.....

Many current and former business owners know they can refuse service to the public for a variety of reasons.

"No shirt, no shoes, no service!"  We have all seen these signs.

If a business chooses to make mask wearing on premises mandatory--they can do this and refuse service to those patrons who do not follow the rules.

So why the push to make the county "mandate" mask wearing via an ordinance like the city of Pensacola's very flawed rule?

I've had people email me saying the business community wants this ordinance--for their protection.

But wait--these same businesses, any time they want to, already have the power to limit access to their premises to only folks who are wearing face coverings or masks--as long as they are not doing this to purposely target a segment of the population in a way that is discriminatory.  I asked our attorney for the relevant statues, and she provided me the following yesterday:

This article relates to the ADA and refusing service:              https://www.natlawreview.com/article/no-mask-no-service-ada-considerations-business-owners-requiring-face-masks-retail

Relevant quote:  “The ADA permits a retailer to deny goods or services to an individual with a disability if their presence would result in a “direct threat” to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation.”

28 CFR § 36.208 --- “This part does not require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.”

They don't need us to do it for them, and the vast majority of counties in America ARE NOT making ordinances mandating citizens wear masks in public.

More than likely this is due to the fact that such ordinances must have so many exceptions, exemptions, and carve-outs that the exemptions swallow the rules.

Not to mention the questions of efficacy as it relates to wearing scarves and/or bandanas loosely around the face for protection from airborne virus particles that are .1 Micron in diameter..

Not to mention the challenges of enforcing such mandates (e.g. some citizens cannot wear masks due to health conditions--so will these folks be shamed.  And who will decide the veracity of claims by such citizens of medical problems prohibiting mask wear?)

Mandatory Masking Policies Draw Lawsuits Statewide

The County Attorney's Office compiled the chart, above, based upon some current litigation swirling around the state regarding governmental "mandatory masking" blanket policies.

Currently, the circuit courts and at least one federal court have sided with the governmental entities.  The thought is that during the pandemic the courts are balancing the states of emergency and protection of health and outweighing the freedom of choice arguments from those opposed to mandatory mask ordinances.

But most of these are at the very early stages and all appeals are not concluded----so who knows where all of this will land at the conclusion of all appeals?

Meanwhile, in Escambia County we have not issued a mandatory mask wearing ordinance and therefore we will not be incurring costs as these other jurisdictions are currently.

No Coffee With the Commissioner This Week due to Budget Workshops

We will not be having our weekly "Coffee with the Commissioner event this week due to our yearly budget workshops this week taking place on Tuesday and Wednesday mornings.

We will resume our online coffee events next Wednesday, July 22nd.

I look forward to seeing you all online next week!

When Exceptions Swallow Rules.........

Which is worse--mandating the wearing of a disposable mask over and over and over, day after day, and improperly to boot-----or allowing this improper wear to "meet" the standard of an ill-conceived, non-enforceable ordinance?  (or both?) 

We find ourselves in the midst of a battle of wills over the wearing of masks here locally.

The city went headlong into this issue by "mandating" all citizens wear masks indoors. So did the city of Milton----and then Milton's City Council promptly and resoundingly walked their mandate back.  Actually it got yanked back and thrown in the garbage can.

Santa Rosa County has no mandate for mask wearing either.

But Pensacola has a mandate, brought forward by the mayor initially.  Then the city council doubled down and made it an ordinance with teeth with financial penalties for citizens that don't wear masks--because the city's ordinance requires citizens to wear masks!

Well, wait a minute.  Just most citizens in most places.  With some exceptions. 

Well, realistically--with a lot of exceptions.  For instance, now we are told that students who come back to classes in buildings and schools within the city limits will not be wearing masks.  At least they won't be mandated to do it.  Apparently, the city's got an exception for that.

And those who attend churches in the city limits don't have to wear masks.  There's an exception for that, too.

And outdoors--well, outdoors in socially distanced settings masks are not required.  There's an exception for that.

Demonstrators that gather in numbers, not wearing masks and not socially distancing--is there an exception for this?  Not sure--but regardless--it's happening, people are congregating and exercising their freedom of assembly and not wearing masks while not socially distancing-- and it is not being enforced.  Perhaps there is a tacit "exception" for that, too?

And surely the virus knows these exceptions and will ensure transmission is ceased during periods of time and under these circumstances when the city's ordinance provides exceptions, right?

Sure.

What about at a restaurant in the city?  Indoors, the ordinance says wear a mask.  But when the food comes--or when the drinks come--everyone at the table can "unmask" to eat and drink--there is an exception for that.  So half the people--eating and drinking together in small groups and large groups will be masked, and the other half will be unmasked.  Or, should diners and drinkers keep their masks on, and cut holes in their disposable surgical masks that they wear over and over--and put a straw through the hole and drink their beverages, wines, and bottled beverages through the straws whilst keeping the masks in place?  That'd be a weird look, like a scene out of the original 1977 Star Wars Cantina Band scene....  Same thing for food.  Keep the masks on and pull them to the side, quickly, and spoon feed without spilling it all over the inside of the mask.  That could get messy.....And if you cant do this--then take the masks off between bites and gulps.   I'm sure the airborne viruses and germs know the difference and politely and obediently do not disburse while citizens in the city limits eat and drink, right?  The microbes wait till the masks go back on.  Sure thing.  You bet.

So yes, technically, there is an ordinance in the city mandating that citizens wear masks.  Most of the time.  With some exceptions--I mean, LOTS of exceptions.  And with little enforcement.  And with no standards.   Right.  Check.

Well what about the masks and how they are worn?  Surely there must be standards in the ordinance the city wants us to adopt, right?

Answer:  Nah, just have a "face-covering" of any variety.  Yeah--just something, anything, just a

48th Coffee with the Commissioner Event Tomorrow Morning!

Tomorrow morning we will have our 48th Coffee with the Commissioner event live on Facebook.

We will be having County Administrator Janice Gilley, Escambia Emergency Manager Eric Gilmore, and Escambia County Supervisor of Elections David Stafford on the live-stream.

We will get an update on the Coronavirus from both Janice Gilley and Eric Gilmore--and then we will discuss the upcoming primary and general elections slated for August 18th and November 3rd respectively.  Specifically, I'll be asking Mr. Stafford how the COVID-19 pandemic is impacting the elections this year and what is being done to ensure safe and accessible elections this year.

Should be a very interesting conversation.

To join the event live Wednesday morning, simply go to https://www.facebook.com/CommissionerBergosh/

"See You" online this Wednesday!

Escambia Employee Salary Database Goes Live

As of today--the total wages paid yearly  to every employee of Escambia County (already an often requested public record) is available for citizens to search in a newly established database that went live today.   

The state of Florida has a website where citizens can search for the total compensation for any state employee---because this data is a public record and citizens have the right to know.

The salaries of the public employees of local governments are also a public record.

We often receive public records requests for this information on specific employees.

But if the state can publish a searchable database--why can't the county?

Answer: we can.  And now we are.

As a part of my NEXT4Escambia plan--a strategy position paper I have developed for addressing specific issues over the next four years that I have written based upon public input---this very sort of an open, searchable salary database initiative was a major component!

I brought it forward to the administrator, the idea was socialized with my counterparts, and ----voila---here it is.  Glad we got it done.

Now, citizens do not have to ask permission to see the total wages paid to any Escambia County Employee--they just need to go here--and look it up for themselves.  They can peruse all of the salaries or just look for specific individuals.

It is important that citizens know what we pay our employees, because we treat our employees well and they are well compensated with good pay and generous benefits.  Often times an employee's total wages paid will greatly exceed what an "hourly rate" might otherwise indicate.  So folks need to look at this. 

Surprisingly--we have dozens of job openings in multiple departments that we have had a tough time filling.  I tell folks that working for the county, you'll never get rich--but if start out and stick with it and make it a career--you will have excellent benefits and a pension and if you stick it out you can have a great retirement!

NOTE:--this database indicates total wages paid per the FISCAL year, not calendar year.

I am going to request that the IT folks also add a "date of hire" column to the database, as I feel this will be a good addition to add some context to the salary information (e.g. is the employee "new" or a "journeyman")

Commissioner May asked if we could add a column for employee race and sex, and I believe that is in the works as well.

On WCOA Morning Show: Masks, COVID-19, Pensacola Beach, Air Show--lots of Topics Covered....

I was interviewed yesterday on WCOA's Good Morning Pensacola on the topic of COVID-19, The July 4th Weekend and rumors of Beach Closings, and the hot button topic of the push by some to make mask wearing mandatory in Escambia County.

We had a good discussion on these and other timely, relevant topics of current interest.

You can hear the recording of this interview here