Thursday, November 21, 2024

A Law Firm Provides the Legal Framework to Masking Requirements

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The featured image is from WikiCommons from December of 1918 entitled “Policeman in Seattle wearing facemasks made by the Red Cross, during influenza epidemic.

Mendocino County has experienced a number of highly-publiczed challenges to masking requirements as laid out by Public Health and local businesses. Fiddleheads, the diner in the town of Mendocino, received national media attention when it instituted a $5 fee for customers who wore a mask in the business. More recently, a group of approximately 20 protestors entered Ukiah Natural Foods refusing to wear a mask while questioning employees who attempted to enforce the store’s requirement.

One of the refrains of these anti-mask protestors is the idea that requiring a mask goes against the Americans with Disabilities Act, legislation put into place in 1990 designed to protect people with disabilities from experiencing discrimination or being refused service.

Christopher Dolan and Lourdes Armas, attorneys at San Francisco’s Dolan Law Firm, provide a simple legal analysis of these claims that enforcing masks somehow goes against the American with Disabilities Act pointing towards 1905’s Jacobson vs. Massachusetts as the legal precedent that allows both public health entities and private businesses to enforce masking.

Back in the 1970s there was the public outrage when businesses first placed signs on their doors saying, “No shirt, no shoes, no service.”  This was a response by businesses to keep the long-haired hippies out of their stores and restaurants. There was no state or federal mandate. Many thought businesses were trampling on their civil rights by telling them what they could or could not wear. But businesses have a right to set their own rules for service. The right to refuse service is now an accepted norm as is the phrase.

Similar reactions were heard in the ’80 when California enacted a variety of laws. In 1984, California Supreme Court unanimously upheld a mandatory auto insurance law requiring motorists stopped for traffic violations to prove they have liability coverage or eventually face losing their licenses. Two years later, California’s first seat belt laws took effect on January 1, 1986, and required both drivers and passengers to wear seat belts. It is also a state law that motorcycle riders under age 18 must wear helmets. 

Even in the face of scientific studies showing that seatbelt and helmets save lives, there was the outcry of “the government” interfering with your lives.

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Still if you are driving a car and have no proof of insurance, you are not exposing anyone to anything lethal. If someone passes you riding a motorcycle without a helmet, their risk exposure is greater than yours- the same for no wearing a seatbelt.

Now, a whole lifetime later, we buckle up as soon as we sit down in a vehicle, make sure that our kids are wearing helmets, and do not dare drive without insurance. We would not even think about walking into a store with bare feet and no shirt on. All of these have become second nature. No personal liberties have been affected and no one has been hurt by following the rules.

Until the pandemic, we gave little thought to “No shirt, no shoes, no service.” The same should be for masks. Businesses have the right to refuse service to those that refuse to enter without masks. Although it is understandable that culturally, the U.S. wasn’t really prepared to wear masks, unlike some countries in Asia where the practice is more common- it has been almost a year since the pandemic paralyzed the nation and wearing a mask should be second nature. Yet, we are still having this debate.

Mask compliance has become a political issue instead of a health issue despite the evidence. “This is a life-and-death issue. Masks, physical distance and hand-washing are the three things we have to reduce the spread of the virus in the absence of a vaccine”, according to Dr. David Abrams, NYU School of Global Public Health

Both the Centers for Disease Control and Prevention (CDC) and the World Health Organization recommend masks for the general public. Keeping in line with the experts, California Department of Public Health issued face covering guidance in April 2020 that must be followed statewide.

Analysis of data from Johns Hopkins University, California ranked No. 1 among the states where coronavirus was spreading the fastest on a per-person basis. Still protests over wearing masks are now commonplace. As Dr. Abrams pointed out “There’s a certain bravado of being angry and defying requirements to wear a mask.”

  • Costco Karen,” for instance, staged a sit-in in a Costco entrance after she refused to wear a mask, yelling “I am an American … I have rights.”
  • An unruly crew marched through Target yelling “Take off your masks, we are not going to take it anymore.”
  • “Burn the Mask” protestors blocked the entrance of Trader Joe’s in Fresno to causing the store to close early.
  • A protestor at a Ralph’s in Los Angeles called a shopper wearing a mask a “mask Nazi.”
  • In a mall in Century City, anti-mask protesters tried to force their way into several stores causing workers to be barricade themselves inside stores to keep out protesters.

Despite the protestations, wearing a mask just like wearing seat belts, shoes and a shirt, does not violate your rights. The government has a right to enact laws to protect the health and safety of the public. That is the quintessential role of the government. 

To the extent that protestors object that masks violate their right to liberty (“my body, my choice”), they should direct their attention to Jacobson vs. Massachusetts (1905) 197 U.S. 11, the Supreme Court upheld the state’s smallpox vaccination requirement. The case has not been overturned.  The case clearly explains why mask mandates do not violate any constitutional right to privacy, health, or bodily integrity. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” 

The case makes it clear that the ideals of limited government do not absolve us of our social obligation to protect each other. Simply put, we do not have a constitutional right to infect others.

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For now, masks are necessary. Common sense suggests that If there is no choice, we will wear masks. We all will be safer if businesses work together to make “No Shirt, No Shoes, No Masks, No Service” the norm in California.

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37 COMMENTS

  1. “Common sense suggests that If there is no choice, we will wear masks.”

    not a shred of common sense to wearing a mask,
    it just makes the tyrants and the sheep feel good. thing is the tyrants do not follow their own rules. GFY on the tyrants and masks.

    Dr Byram Bridle experiment

    https://www.youtube.com/watch?v=UXLPRBqyBww

    i actually duplicated the experiment my-self while at meeting where there was SD sitting outside in the cold air on metal chairs getting hemorrhoids to make the mask nazis happy.

    • Your comments show a willful & intentional disregard for clear and established science while evidencing that you have absolutely no consideration for fellow citizens nor how you may affect their health and/or life.

      There are millions of very vulnerable people that have to deal with unnecessarily highly elevated risks because of the echo hall of hyper-policiticized “anti-whatever” agendas of insanity draped in false patriotism.

      Your pseudo scienctific pronouncements, from very questionable “sources”, in the face of solidly established reproducable scientifically determined facts, that you can not wash away, is akin to a tantruming child painting poop on the walls in angst.

      The lack of civic awareness, in conjunction with the above listed absurdities, in evidence by your little bullying group is despicable and shameful.
      But you’re all doing excellent work for the GRU & CCP, and the rest of the sadists and douche bags.
      Very Sad indeed.

      The common good is balanced with individual liberty as enshrined in the constitution.
      Get over it.

      The very right wing slanted Supreme Court has denied review of the mask mandates several times now.
      Get over it.

      You are not entitled to put others at unreasonable risk.
      Get over it.

      If the covaxx was nearly as risky as you all imagine, then considering the vaxx rates amonst medical professionals then we should have expected most of them to be dead by now.
      Utter bullshit. Get over yourselves.

      You wanna see actual tyranny vs your false equivalencies & imagined tyranny?
      Try Pol Pot, Stalin, Hitler, Mussolini, Franco, Hirohito, Idi Amin, Kambanda, Kim il-sung, Kin Jong-il, Kim Jon Un, Mao Zedong, Mengistu, Milosevic, Mubarak, Suharto, Tito, Pinochet, Duarte, Putin, King George III, Queen Mary, Cromwell, Caligula, al-Assad, Ceausescu, Duvalier, Gaddafi, Hussein, Khoemeini, Fu Sheng, Ivan the Terrible, Alexander the “Great”, Genghis Khan, Leopold II, Robespierre, the Thirty Tyrrants, etc, etc, etc.
      Or the Spanish Inquisition, the Crusades, Salem witch trials, all brought to you by JC’s adherents and done in his name.

      I suspect there is no amount of data, facts, or reasoning that will budge or correct the growing, willful & intentional ignorance evidenced or the misinformation & disinformation spewed by many of the commenters here.
      And that little piggy cried wah wah wah all the way home.

      You might make a good EE, floyd, though undetermined, but your choice of source materials & interpretations of law & medical science are for shit…as in something no one even wants on the bottom of their shoe.
      Maybe you should just stay in your lane.
      Or get some actual education on the subject matter so you learn how to know better than to parrot straight up bullshit.

      Btw, you may not know this, but most of the really smart kids who went on to do the science you willfully ignore had “AP Calc II HG” in HS not college. Most of those folks, who make up less than 5% of the population, are light years ahead, educationally & experientially, of an avg citizen, fact.
      Get over yourself.

  2. You just can’t do the right thing, eh? Death, economic upheaval, and community division clearly mean nothing to you and yours. Pathetic.

    • funny thing is that’s how our side views yours.
      you’ve managed to kill people with your “vax” and your remdesivir protocols. you’ve destroyed the country’s economy. you’ve destroyed people’s lives.
      the shots and masks aren’t solving the “problem”. And now you call us the unclean.

      presently, the NY general assembly is trying to vote in internment camps.
      perhaps you should fashion up some yellow stars for us eh?

      • Mike Genitalia would have been a Golden Party Badge member in the infamous era of Germany. He’s clearly all-aboard the current Gleichschaltung of “one truth” or else. Totalitarian systems are always fanatic about “misinformation” (that is, information that exposes the official narrative as deceit). Shame is a big one for them: “you’re killing grandma if you won’t wear a mask.”

        The peaceful way to deal with totalitarians is to LAUGH at them heartily, in public, everywhere, all the time. If they initiate force, do what it necessary.

      • You have zero evidence.
        Apparently, what you think of as evidence is in reality junk pseudo-science,
        conjecture, misinformation, & disinformation.

        Maybe you are GRU. You’re doing well enough with your disinformation campaign that they should hire you.

      • evidence a plenty here my poor soul non fiction

        to quote Reagan (not that he is my savior)
        “sadly ii is just that you are so misinformed on so much”.
        lets face it some, are beyond reach.

    • The Right Thing was following both the principles of human rights AND real science.

      It’s been LIES all along, from “two weeks to flatten the curve” to the now endless “variants.”

      At this point, anyone who still believes in the “trusted experts” is either insane or an idiot.

      The greatest lie is the Liquid Idol: NOT safe, NOT effective, and not even actually vaccines. The more injections, the more cases, and the more mutations. What the Centers for Deception and Control (CDC) insists is “true” is almost always a bizarro reversal of reality.

      If COVID-19(84), especially the Liquid Idol, was based on scientific truths, the massive censorship on major “platforms” would be unnecessary.

    • One would think that a “media consultant” could rise above insult to present a more reasoned response to another’s point of view with whom they don’t agree. Personally, I wear a mask whenever requested although I’m a walking vial of vaccine. Those who choose not to mask primarily endangered themselves alone, and in a free society it’s their right to do so. Let’s face it, Covid has become politicized by elected demi-despots. Currently, even in parts of near socialist Europe, there are riots against their dictates.

  3. Mikey G you were once really bad at your newspaper job and now you think that you are so good and your wordsmith game is so LAME. Sorry to you and your family that you think you are so knowledgeable but only published and heard because the paper you worked for needed a pen ?. Biden has all but let the country know that Omicron is the new flu and throttling back on mandates, read between the lines old timer , your takes are outdated , retire to the old green pond if you like old sir. Poo poo cachoo ? . Please say sorry to floyd when you see him at Hooters ?
    ? ?

  4. FYI in the Jacobson vs. Massachusetts (1905) case, which is getting a lot attention these days because people like these lawyers think that it means the government can require someone do get a vax “for the greater good” of society, Mr. Jacobson was never forced to get the polio vaccine, he merely had to pay a fine of $5.

  5. Jose how dare you not throw in the modern day equivalent of $30 plus, more misinformation by you! Keep the good fight going my friend, Biden big news today was basically not news just what we expected, Omicron will be a lesser version and so will Albinocon , and then it will be the next endemic flu, just as the 1918 SPANISH FLU,50 million estimated deaths world wide, WEGonna be OKor Not, Don’t worry but know your not gonna live to be 150 anyway people.

  6. It’s not a matter of what’s “legal.”

    It’s a matter of what’s RIGHT.

    People have the CHOICE to use a “medical product,” or not, without punishment.

    If the masks which many people worship actually work, they have nothing to worry about from those who choose not to use them. If you think they only work “one-way,” as in, someone ELSE must wear one to “protect” you, then you are not dealing in science, but cult beliefs.

    These shop-ins are the modern moral equivalent of the sit-ins of the 1960s. “Masks Required,” Apartheid, and Jim Crow are all from the same mentality of dehumanization and division. “Whites Only” was “the law” in the past. The disabled must not bee seen in public was “the law” in the past.

    If you believe “medical products” must be forced upon people, then you are part of the Problem. And that problem is totalitarian “thinking” and behavior. Remember how this started? – “two weeks to flatten the curve.” Some “two weeks,” eh? What WON’T you tolerate and even accept? Voltaire warned us:

    “Those Who Can Make You Believe Absurdities Can Make You Commit Atrocities.”

  7. The “war on Covid”, the”war on drugs”, the “war on terror”…. Another long, never ending war, against a faceless enemy. War profiteering at it’s finest.

  8. P.S. All the miseducated pronouncements and ignorance can, with certainly, be corrected with will & due diligence applied with actual data, knowledge, & reproducable facts.
    Probably need help…not everyone is an autodidact and thus require guidance.

    What is uncertain is whether or not selfishness & asshole can be corrected. Maybe, at minimum, is up to you to accept the existing state of awareness and behavior and then develop the will to correct it.

    • i do believe things will be corrected, it just may not be the things you are wishing for. you don’t seem to be holding the terrain real well.

      • The only terrain you’re holding is in the imagination of yourself and the uneducated and whimsical.

        The bullying and personal denegrations hasn’t gained you and your buddies anything but derision.

        As you clearly don’t care about anyone but yourself, you shouldn’t be surprised that people are starting to say fuck the anti-maskers/vaxxers…let em get themselves killed. Like so many of the loudmouth loser antis that are now dead of covid.
        Main problem, is that you’ll likely infect others on your way out, much.like your ignorance does for the uneducated.

      • “The only terrain you’re holding is in the imagination of yourself and the uneducated and whimsical.”

        i think not. i am blessed to witness many fine patriots in my presence in many of these posts. sadly, you seem to squirm in your derangement. a fine example of satan. i don’t hate you, i pray for you, (as hard as that is for me personally). the truth is – you don’t hold the terrain anymore

  9. A Priest gets on an ocean going ship on a Mission to spread the word of god to a another continent.

    On the voyage the ship sinks.

    The priest finds himself on a lifeboat with many other passengers floating somewhere in the ocean.

    Days later a ship spots them and comes to the rescue.

    All the lifeboat passengers get on the rescuing ship, but the priest refuses the rescue, “God will save me.”

    Days later, the priest is near death and without anymore fresh water.
    A helicopter comes to the rescue and drops a basket to haul him inside.

    The priest refuses the rescue, “God will save me.”

    He dies the next day, sun dried and bleached.

    Once in heaven, the priest asks God, “Why didn’t you save me?”
    God responds, “I sent you a ship and a helicopter to bring you home. What do you expect?”

    Our expectations are the leading cause of our dissappointment and are often not based in reality.
    What are your expectations?

    If you believe in God, isn’t it clear to you that knowledge of physics and medical science is God’s will?
    And likely of God’s many “miracles”?

    If not, might as well throw out your computer, light bulbs, car, fridge, phone, stove, heater, tools, fuels, roads, medicines, etc and forget about planes, doctors, engineers, & any industry, etc.

  10. *cough* More information… from the CDC, New England Journal of Medicine, and the Annals of Internal Medicine.

    “The recommendation to wear surgical masks to supplement other public health measures did not reduce the SARS-CoV-2 infection rate among wearers by more than 50% in a community with modest infection rates…”

    https://www.acpjournals.org/doi/full/10.7326/M20-6817

    “In our systematic review, we identified 10 RCTs that reported estimates of the effectiveness of face masks in reducing laboratory-confirmed influenza virus infections in the community from literature published during 1946–July 27, 2018. In pooled analysis, we found no significant reduction in influenza transmission with the use of face masks”

    “…Disposable medical masks (also known as surgical masks) are loose-fitting devices that were designed to be worn by medical personnel to protect accidental contamination of patient wounds, and to protect the wearer against splashes or sprays of bodily fluids (36). There is limited evidence for their effectiveness in preventing influenza virus transmission either when worn by the infected person for source control or when worn by uninfected persons to reduce exposure. Our systematic review found no significant effect of face masks on transmission of laboratory-confirmed influenza.”

    https://wwwnc.cdc.gov/eid/article/26/5/19-0994_article

    “…We know that wearing a mask outside health care facilities offers little, if any, protection from infection. Public health authorities define a significant exposure to Covid-19 as face-to-face contact within 6 feet with a patient with symptomatic Covid-19 that is sustained for at least a few minutes (and some say more than 10 minutes or even 30 minutes). The chance of catching Covid-19 from a passing interaction in a public space is therefore minimal. In many cases, the desire for widespread masking is a REFLEXIVE REACTION TO ANXIETY over the pandemic.”

    https://www.nejm.org/doi/full/10.1056/NEJMp2006372

  11. Still haven’t seen a shred of viable evidence from these bullies. Not a single evidence based response or any show of civic responsibilty or consideration for others has been shown.
    Just very thin correlations without any substantiation or even the slightest iota of evidence showing anything approximating causation.
    Along with outright parroted lies, loads of confusion, willful ignorance, and total absurdity.
    And now bible quotes as “evidence”.

    Please, save your prayers f. You might need em.
    Your belief system isn’t louder.my car system.
    I don’t want your misguided hopes.

    We can only hope that you will seek treatment for the shoulder deep variant of cranial rectosis you are suffering with before you infect anyone else.
    As an EE you should know better than to attempt to back falsehoods with belief and totally unsubstantiated rumorous shite.

    No matter what you think, the facts stand on their own and reality continues forth.
    Nearly everyone used to believe the earth was flat. It was still spherical regardless of what people thought.
    Ignoring reality doesn’t modify reality, just points to your over-active imagination.

    The despicable flat earth-esqe covid disinformation campaign has landed squarely on your site Matt.

    I pray that those that don’t know any better ignore the wanton & willful idiocy exhibited by these in.

    PS
    RFK jr is a total nutburger.
    Thinks his dad is still alive and hiding out.
    His other pronouncements are full of easily debunked trash.
    His claims about AZT are particularly egregious and wildly off the mark.

    He provides the proof himself that he has little idea, if any, of what he is talking about.
    And he’s got you little fishies hook line n sinker.

  12. wow i seemed to have sparked your incompetent ass.
    i was tempted to respond to your deranged diatribe line by line. the thing of it is, it is not worth my time, and nobody wants to hear my personal story anyhow. i am simply trying to bring up facts, and it would appear you are attempting to maintain the Joseff Goebells legacy.

    you are a very sad and disturbed (whatever pronoun you prefer) individual.

    with all of your flowery rhetoric maybe you should take up writing non-fiction.
    you certainly have a talent for it!

    in the end it is not about personal attacks…yours or mine. it is about the truth.

    • Yes Floyd, keep sharing facts and don’t let yourself respond or get sucked into people trying to cause division just for the sport of it. With no real purpose except to bring chaos. And I think you know where that comes from. I think you’re better than that. Stay on point and let your words be few. Cause in the end you’ll give account for every one them ?

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Matt LaFever
Matt LaFeverhttps://mendofever.com/
For the past seven years, Matt LaFever has covered the North Coast of California in both print and radio news. A Humboldt State graduate, he has lived in the Emerald Triangle for nearly 20 years. His reporting spans local issues like crime and wildfires. When not writing, Matt is an avid outdoorsman, exploring Northern California’s rugged landscapes. Reach out to him at matthewplafever@gmail.com.

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