Mandatory Mask Executive Order Questions
We received this letter from Ron Kezeske asking for clarification on the Executive Order and we are publicizing his letter and the response from County Attorney Jeffrey Klatzkow with permission from both.
July 21, 2020:
“Mr. Klatzkow and County Commissioners,
As a local business owner, I struggle with the spirit of the passage of Emergency Order No. 2020-05. However, that is not why I write you at this time. I’ve done some limited research, both legal and basic, but cannot find any guidance as to how this order so swiftly passed coincides with the Americans With Disabilities Act. There seems to be limited to no litigation on the issue, as most municipalities back down once the legality of the order is challenged, specifically on these grounds. Section 3(4) of your order specifically states our business “may exclude the individual, even if they have a disability,”.
I have genuine concern over our required enforcement of this Order as a business. Our local businesses have been left with effectively 2 options: 1. Refuse service and potential face law suit, or 2. Face a fine during these already difficult times for not enforcing this order. In the event we opt for option 1., will the County be providing a defense and indemnifying us against such litigation? I whole-heartedly understand your intentions on your actions today, but as I cautioned you all in an email on June 29, it will likely create more problems than it solves, especially for our already struggling business community.
I anxiously wait your guidance.
Answer from the Collier County Attorney, Jeffrey A. Klatzkow:
Commissioner Taylor requested that I respond to your query.
To address potential claims against local businesses involving the Americans With Disabilities Act (“ADA”), I included the following clause in the Order:
When a customer of a business establishment asserts that he or she has a disability that prevents the individual from wearing a mask, the owner, manager, or employee of the business establishment may exclude the individual, even if they have a disability, as they may pose a direct threat to the health and safety of employees and other customers, even if asymptomatic, and shall accommodate the disabled individual in a manner that does not fundamentally alter the operations of the business establishment nor jeopardize the health of that business’s employees and other customers, such as providing curb service or delivery or other reasonable accommodation. (emphasis added)
The clause gives the owner of a business establishment two options:
- You can, without being in violation of the Order, allow those who assert they cannot wear a mask because of a disability to enter the business without a mask; or
- You can exclude everyone from entering the business without a mask and use the Order as a defense against any ADA claim.
The decision is completely up to you. Feel free to call me with any questions.
Jeffrey A. Klatzkow
Collier County Attorney”