Two county commissioners on Thursday voiced their opposition to the county health department’s efforts to enforce Gov. Eric Holcomb’s mask mandate.
Commissioners Brian Baird and Ron West, during a public meeting, said the mask mandate is unconstitutional and should not be enforced.
Holcomb on Nov. 15 issued an executive order requiring all businesses to post signs saying masks are required to enter, make sure all employees wear masks unless they have medical exemptions and refuse service to anyone who does not wear a mask. Additionally, the order recommends businesses post six-feet markers to encourage social distancing, provide sanitizing products and offer alternative ways to serve vulnerable customers.
The Johnson County Health Department last month began investigating reports of employees and patrons not masking up at food permit-holding local businesses, big and small.
Health department staff do not actively look for mask violations, but investigate any mask complaints made by the public or any that are found during routine inspections, said Betsy Swearingen, health department director.
While there are repercussions for non-compliance, the health department’s goal is not to shut down a business, but rather to educate business owners about the state mandate and why they should follow it, Swearingen said.
When the governor first issued the mask mandate, the local department received hundreds of calls. But that tapered off quickly. Now, the department receives about 10 a day, she said.
The first mask violation is a warning — an education effort. But repeated mask complaints will result in a $100 fine, Swearingen said.
So far, the department has fined at least three businesses for non-compliance, including a Walmart and a Jimmy Johns in Greenwood, and Mi Abuelito in Franklin.
For continued non-compliance, the department could shut down a business or the portion of a business to which a food license applies, Swearingen said. For example, if a bar or restaurant did not comply, the whole business would be shut down. At a grocery store, the deli might be shut down while the rest of the store could continue to operate, she said.
The health department has not had to shut down any businesses, and Swearingen hopes she doesn’t have to. But despite Baird and West’s personal opinions on the matter, that it is still on the table.
“It is not what we wish to do but we will do it if it is absolutely necessary,” Swearingen said.
Both commissioners said they trust Swearingen and her team is not going out with the goal to shut down businesses, but shutting down a business should not be on the table, they said. The mandate, they said, is unconstitutional government overreach.
An American Constitutional Society analysis says a mask mandate should not be considered a rights violation because the U.S. Supreme Court has allowed local governments to establish public health measures during an emergency. For example, in the 1905 case Jacobson v. Massachusetts, the high court upheld making a smallpox vaccine compulsory to protect public health.
The coronavirus shutdown and the economic downturn that followed caused enough damage to businesses without the threat of a mask-related shut down looming, said West, who represents northern Johnson County on the Board of Commissioners.
The mask mandate and gathering limits are not working, West said, suggesting the state lift restrictions and caution the elderly to take precautions instead. Any further actions should be left up to local governments, he said.
The order goes too far by requiring businesses to enforce it and requiring individuals to mask up, said Baird, who represents southern Johnson County. Personally, he wears a mask when necessary, but does not want to force others to do so, he said.
“I think Betsy, especially, knows where I stand. She knows me and she knows my heart. She knows I don’t want anyone to die,” Baird said. “But I also have to do what I have to do and not overstep our bounds.”
Neither commissioner made a formal request that the health department stop enforcing the mask mandate, and they wouldn’t say what they would do if the health department did force a Johnson County business to close.
The three-member board of commissioners provides direct oversight of the county health department and county employees, particularly department heads.
“I believe we have some options as commissioners — that is my belief. I hope I don’t have to test that,” Baird said. “I don’t want to back down from what I believe. I think that would be betraying what the people who voted for me want to see.”
Swearingen agrees to disagree with Baird and West and plans to stay the course, she said.
“My job is to promote public health in Johnson County and I’m going to keep doing that,” Swearingen said.
Kevin Walls, who represents central Johnson County on the board, does not share the other commissioners’ opinions that the health department should disregard the mandate.
Instead, Walls, who said he and most of his family have recovered from bouts with COVID-19, defended the health department’s policy.
“I absolutely understand where you are coming from and the impact it has on small businesses … I think Betsy and everyone are trying to keep people safe,” Walls said.
Johnson County residents should take the virus more seriously and consider taking steps such as ordering carry out instead of eating at a restaurant, he said.
