Ky. mask mandate could face legal challenge as governor, AG spar on pandemic measures

Ky. mask mandate goes into effect as possible legal challenge awaits

SCOTT COUNTY, Ky. (FOX19) - Kentucky’s mask mandate faces a potential legal challenge after Ky. AG Daniel Cameron asked a circuit judge to include the mandate in a restraining order against enforcement of the governor’s pandemic restrictions.

Scott County Circuit Judge Tina Foster granted the restraining order Thursday in a case brought by the Ky. Agriculture Commissioner and Evans Orchard & Cider Mill in Georgetown, Ky.

Cameron subsequently joined with the plaintiffs.

According to a release sent by Cameron’s office, Evans Orchard had complied with Beshear’s executive orders requiring employees to wear masks and follow sanitation practices but sued after the local health department prohibited the business from allowing more than 10 people at a time into a 96,000 sq.-ft. space it owns.

The restraining order granted in the case requires Beshear to stop “issuing or enforcing executive orders related to COVID-19 unless the orders meet specific criteria for an emergency as outlined by state law,” according to the release.

It continues: “The Judge stated that, in order to issue and enforce executive orders related to COVID-19, the Governor must specify the state of emergency that requires the executive order, the location of the emergency, and the name of the local emergency management agency that has determined that the emergency is beyond its capabilities.”

Cameron calls the governor’s orders “broad” and “arbitrary,” repeating arguments made in another case he joined where a Northern Kentucky judge issued a restraining order against Beshear’s orders on auto race tracks and child care centers.

In that case, Cameron argued the governor “has the right—indeed, the duty—to protect the Commonwealth and its citizens from a public health emergency. But, the law requires that the Governor’s actions and orders be targeted and proportional to the threat the Commonwealth is confronting.”

Meanwhile, just hours after Foster granted the restraining order on Thursday, Beshear announced Kentucky’s mask mandate requiring people to wear masks, with some exceptions, inside businesses, outside where social distancing is not possible, on public transportation and in ride sharing.

Then on Friday, Cameron announced his office had filed a motion in the Evans Orchard case asking Foster to consider whether Beshear’s “most recent executive order requiring face coverings complies with the current temporary restraining order stopping enforcement of COVID-19 executive orders that are not in compliance with state law.”

Beshear clarified Friday in his press briefing the mask mandate is an administrative agency regulation, not an executive order, hence it lies “separate and apart” from the Foster’s enjoinder.

The governor also said the state has functionally appealed the restraining order (he explained it’s not a formal appeal but a writ.)

“You don’t write restraining orders like this,” Beshear said. “It’s very bizarre. It’s not legal.”

He added he is confident the court of appeals will overturn the restraining order whether in an initial motion or after a hearing.

“It’s not the AG vs. the governor,” Beshear said speaking on media narratives Friday. “It’s the people of Kentucky vs. the coronavirus. And anyone who makes it harder to defeat the coronavirus, that costs lives.”

He continued: “I want to do the right thing to protect our people, and I will go through any courts I have to to do that.”

As for the mask mandate itself, Covington’s Egelston-Maynard Sports isn’t waiting for the result of any court case to get serious on it. They say they’re going to follow the order.

“If someone is not wearing a mask, but it is required, we’re just going to have to politely either give them one or ask that they go get theirs,” Alison Nelson with Egelston-Maynard Sports explained.

Whitney Sutkamp is fighting cancer right now. She’s a big fan of the mask order too and is asking people in the community to think of people like her before not wearing masks.

“As a unity in society, everyone wins when we do our part, I think,” Sutkamp said.

But Northern Kentucky resident Dixie Zehoin isn’t of the sam mind. She says she’s not a fan of the order and believes she’s being vilified for not wearing one due to a health condition.

“I’m not afraid of the virus. I’m not scared of it, so I don’t wear a mask,” said Zehoin.

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