By Nathan Hale

Law360 (January 27, 2021, 4:43 PM EST ) A Florida appeals court on Wednesday shot down several residents' bid to block a face mask mandate that Palm Beach County enacted in response to the COVID-19 pandemic, rejecting their argument that it intrudes on their constitutional right to refuse medical treatment.

The county's emergency order, which county commissioners enacted in late June and have extended seven times through at least Feb. 19, drew national attention when a number of members of the public lambasted the board at the meeting when it was approved, raising conspiracy theories and in one case accusing the commissioners of "practicing the devil's law."

While the Fourth District's decision, upholding a trial court's denial of residents Josie Machovec, Carl Holme, Karen Holme, Rachel Eade and Robert Spreitzer's emergency motion for a temporary injunction, rested on a relatively narrow issue, the panel appeared to offer a broader rebuke of the residents' claims.

In the conclusion of its 10-page opinion, the appeals court said that the Florida Constitution's protection of a person's "right to be let alone and free from governmental intrusion into the person's private life" is not absolute.

"Although a person's subjective expectation of privacy is one consideration in deciding whether a constitutional right attaches, the final determination of an expectation's legitimacy takes a more global view, placing the individual in the context of a society and the values that the society seeks to foster," the court quoted from its 2002 decision in Jackson v. State .

And quoting from its 1983 decision in Davis v. City of S. Bay , it added, "To that end, 'there are circumstances in which a public emergency, for instance … the spread of infectious or contagious diseases or other potential public calamity, presents an exigent circumstance before which all private rights must immediately give way under the government's police power."

Amid surging COVID-19 cases over the summer, the county commission voted 7-0 to direct the county administrator to issue an order requiring the wearing of facial coverings in all businesses and establishments, government and municipal facilities, public spaces where social distancing is not possible, and on public transportation.

The Fourth District characterized Emergency Order 12, which took effect on June 25, as featuring "liberal exemption provisions" for certain individuals as well as a "broad definition" of "facial covering."

The five residents filed their suit within a few days, claiming that the emergency order violates their right to privacy, as protected by Article I, Section 23 of the Florida Constitution, and arguing that as a result the trial court should apply "strict scrutiny" in reviewing their claim that an injunction is warranted because the measure does not satisfy a compelling state interest by the least intrusive means. They also claimed it violated their due process rights because it is vague, arbitrary and unreasonable, according to the opinion.

Applying a "rational-basis" standard, the trial judge denied the motion, saying the plaintiffs had failed to establish a substantial likelihood of succeeding on the merits or that an injunction would be in the public interest, according to Wednesday's opinion.

In its analysis, the Fourth District said cases the residents had cited on the right to choose or refuse medical treatment did not apply because they involved plaintiffs "contesting efforts to impose invasive procedures."

Also, definitions of "medical treatment" established in other cases the plaintiffs raised did not support their argument that the mask mandate fits that description, the panel said.

"Appellants' argument that the individuals required to wear facial coverings are being subjected to forced 'medical treatment' distorts the nature of the county's mask ordinance," the panel said. "Requiring facial coverings to be worn in public is not primarily directed at treating a medical condition of the person wearing the mask/shield. Instead, requiring individuals to cover their nose and mouth while out in public is intended to prevent the transmission from the wearer of the facial covering to others (with a secondary benefit being protection of the mask wearer)."

Since the emergency order does not implicate the constitutional right to refuse medical treatment, the trial court was correct to apply the rational-basis standard, the judges said, adding that in their appeal the challengers did not present any arguments that the county lacked a rational basis for its actions.

"It is within the police power of the state to enact laws to prevent the spread of infectious or contagious diseases," the panel quoted from its 1979 decision in State Dep't. of Agric. & Consumer Servs. Div. of Animal Indus. v. Denmark .

The judges noted that whether the County Commission used its authority wisely was not at issue in the appeal, but they said it is "readily apparent" that the county and the world are facing a "public health emergency of international concern," necessitating "mitigation measures."

Louis Leo IV of the Florida Civil RIghts Coalition, which is representing the residents, said they are still evaluating the decision but criticized it as "fallacious and illogical," citing references to motorcycle helmet law that the opinion acknowledged is no longer in state law and a reference to statements by nonparties calling the pandemic "a hoax."

'As for our constitutional right to be let alone and free from governmental intrusion into our private life guaranteed by Article I, Section 23 of the Florida Constitution, well, this panel of judges who swore oaths to support, protect and defend Florida's Constitution apparently believe our inalienable rights must 'immediately give way under the government's police power,'" Leo said. "This is a troubling ruling that has left our clients and many other Palm Beach County residents harmed by the mask mandate questioning the integrity of our courts and Florida's Constitution."

A spokeswoman for the county said it does not comment on pending litigation.

Judges Alan O. Forst, Martha C. Warner and Mark W. Kingensmith sat on the panel for the Fourth District.

The plaintiffs are represented by Jared H. Beck, Elizabeth Lee Beck and Victor Arca of Beck & Lee Trial Lawyers, Louis Leo IV of Florida Civil Rights Coalition PLLC, Joel Medgebow of Medgebow Law PA, Melissa Martz of Melissa Martz PLLC and Cory C. Strolla of The Law Office of Cory Strolla PA.

Palm Beach County is represented by Assistant County Attorneys Helene C. Hvizd and Rachel Fahey.

The case is Machovec et al. v. Palm Beach County, case number 4D20-1765, in the Fourth District Court of Appeal of Florida.

--Editing by Bruce Goldman.

Update: This story has been updated to include comment from the residents' counsel.

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