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Are Orders Requiring Face Coverings Legal?

John Ballard July 10, 2020

On July 6, 2020, the Mayor of Williamson County issued an order that requires individuals to wear a cloth mask or other facial covering under certain situations. There are of course many exceptions such as while in the car, while eating, kids under 12, and so on. Basically, individuals are required to wear a mask while inside a business or outdoors in places where social distancing is not possible. You can read the full text of the order here.

The power for this order comes from Governor Lee's July 6th Executive Order No. 54 authorizing County Mayors in counties without a local health department to issue orders and measures requiring or recommending the wearing of face coverings. To do this the Governor used his emergency powers to suspend all laws, orders, rules, or regulations that would limit the application of this order. Essentially, he is using his Emergency Powers to allow County Governors to require facemasks within their jurisdiction. This power comes from Tenn. Code Ann. 58-2-107.

The Emergency Powers granted to the Governor are very broad. Not only can the Governor suspend rules, regulations, and laws, he can also create them, and importantly, he can delegate his powers as he deems fit, which is what he has done here. The Emergency Powers allow the governor to “[T]ake measures concerning the conduct of civilians….” T.C.A. 58-2-107(e)(11). Governor Lee has therefore acted within the bounds of the law when he delegated his powers to the 89 counties of Tennessee. He has the power to require face coverings across the State, but instead left it up to the county mayors. By operation of law, then, the county Mayors are acting within the bounds of the law to create requirements mandating the use of face coverings in certain situations.

The punishment for any civilian not complying with an Executive Order issued by the Governor during a State of Emergency is a Class A misdemeanor which carries the possible punishment of 11 months and 29 days in jail and a fine of up to $2,500. The source of this punishment is Tenn. Code Ann. 58-2-120. Therefore, if you live in a county where the mayor has issued an order mandating individuals to wear face coverings, you could be cited for an A misdemeanor.

The answer to the question, “Is this legal?” is “Yes.” Some people may believe that county Mayors are “creating laws” by these executive orders. However, the fact is that the Legislature of this State specifically wrote and enacted laws enabling this kind of order. Whether or not this is the right thing to do is up for debate. Either way, if you are cited for violating the executive orders, then you will need legal representation. Whether they enforce this or whether they prosecute this remains to be seen. I would venture to say that an experienced attorney could attack these laws in some way, and I doubt that the District Attorneys of this State are going to be heavily prosecuting this charge, but it depends on the County. So, for now, just wear a mask.