New Hanover County issues mask mandate, enforcement could include criminal charges and facility closures
The county's health and human services board issued an 'Order of Abatement' that goes into effect this Friday. Following a 10-day public comment period, the board will vote on a more lasting health rule.
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On Tuesday, the New Hanover County Health and Human Services Board voted unanimously to pursue a health rule, instituting a mask mandate for all "indoor public places within New Hanover County, to include offices and workplaces, business establishments, public transportation facilities and vehicles, and any place the public is invited or allowed to assemble."
The county-wide mandate will apply to anyone 2 years and older, regardless of vaccination status.
The county cited the increase of "several key Covid-19 metrics" as the rationale for the order, including a spike in cases, positivity rate, and the rapid rise in hospitalization.
The health rule requires a 10-day public comment period; in the meantime, the county's public health director, David Howard, issued an 'Order of Abatement,' which effectively creates the mask mandate this Friday at 5 p.m.
You can view the Order here, although due to technical issues you may need to refresh the page repeatedly. The order is also available at the of this article.
The order is written to encourage 'warnings' before criminal action. Enforcement will allow 'compliance officers' — including designated county and municipal staff and law enforcement — to issue criminal violations under North Carolina General Statute 130A-25. However, the proposed health order notes that, except where there is an imminent public health hazard, "a compliance officer shall first issue a warning to abate a violation prior to seeking criminal penalty."
Criminal penalties would be a misdemeanor. Interestingly, NCGS 130A-25(b) — part of the statute referenced by the county health order — makes reference to alternative sentencing for violations to health department 'control measures'; instead of relying on the state's scheduled sentencing, it would instead include up to 2 years in a medically-orientated correctional facility, like McCain Hospital, the former state sanitarium located in Hoke County.
That section of statute reads: "A person convicted under this section for violation of G.S. 130A-144(f) or G.S. 130A-145 shall not be sentenced under Article 81B of Chapter 15A of the General Statutes but shall instead be sentenced to a term of imprisonment of no more than two years and shall serve any prison sentence in McCain Hospital, Section of Prisons of the Division of Adult Correction and Juvenile Justice, McCain, North Carolina; the North Carolina Correctional Center for Women, Section of Prisons of the Division of Adult Correction and Juvenile Justice, Raleigh, North Carolina; or any other confinement facility designated for this purpose by the Secretary of Public Safety after consultation with the State Health Director. The Secretary of Public Safety shall consult with the State Health Director concerning the medical management of these persons."
Asked about this, Howard noted "that [the statute] is typically targeted to control of communicable diseases where a person, i.e. a communicable TB patient or the like, if imprisoned, would likely need to be in a facility equipped to properly isolate them an treat them, vs. some general population facility. The important part is that violation is subject to a misdemeanor charge."
The abatement and proposed health order would also allow the closure of facilities in a tiered system of violations: first a 24-hour closure, then 48 hours, and then 72 hours for a third or subsequent violation. The proposed order notes that no closure will be lifted "if the public health hazard has not been completely and satisfactorily corrected."
Under the order, obstructing or making false statements to a compliance officer would be treated as a Class 2 misdemeanor (an intermediate misdemeanor offense, for which most do not serve prison time, but can carry up to a $1,000 fine and a 60-day sentence).
The mask mandate includes the following exceptions:
- Anyone with a medical or behavioral condition or disability, including difficulty breathing.
- Children under two years old.
- Children under five years old, if a parent, guardian, or responsible person has been unable to place and maintain a face-covering safely on the child’s face.
- Anyone who is actively eating or drinking.
- Anyone who is seeking to communicate with someone who is hearing impaired in a way that requires the mouth to be visible.
- Anyone giving a speech or performance for a broadcast, or to an audience, where they maintain a distance of at least 20 feet from the audience.
- Anyone at home or in a personal vehicle.
- Anyone who must temporarily removing their face covering for identification purposes to secure government or medical services.
- Anyone who would be at risk from wearing a face-covering at work, as determined by local, state, or federal regulations or workplace safety guidelines, or who has found that their face covering is impeding visibility to operate equipment or a vehicle.
- Anyone alone in an enclosed space, such as a room, office, or vehicle.
- Anyone participating in worship, religious, spiritual gatherings, funeral ceremonies, wedding ceremonies, and other activities constituting the exercise of First Amendment rights.
The proposed health rule can be viewed at Health.NHCgov.com (or below at the end of this article), and public comments on the rule can be submitted here, from Tuesday, August 17 through Monday, August 30 at noon. At that point, the Health and Human Services Board will reconvene, review public input, and vote on the proposed rule.
The county expects to release additional details about the administrative process for the abatement order "in the coming days." According to the county, "signs for business to hang about face coverings, Frequently Asked Questions, and more will be posted at Health.NHCgov.com as those details are finalized."