Ohio court rules county health dept. can’t suspend restaurant licenses for employee mask violations

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A state court in Ohio has ruled that a county department of health does not have the authority to revoke food service licenses from restaurants over employee mask-wearing violations.

The owners of Cattlemans Restaurant in Savannah, Ohio, had their business license suspended temporarily July 15 after officials with the Ashland County Health Department saw two employees — a dishwasher and a cook— not wearing face masks while working in the kitchen area.

But the suspension was challenged by the Columbus-based 1851 Center for Constitutional Law, which argued that the Ashland County Health Department’s action was illegal, Cleveland Scene reported.

“The Ohio Constitution prevents administrative agencies from imagining new policies for suspending licenses and shutting down businesses,” Executive Director Maurice Thompson argued at the time. “The State’s mask requirements remain largely symbolic and unenforceable.”

Judge Ronald Forsthoefel with the Ohio Court of Common Pleas agreed, granting the restaurant owners’ request for a temporary restraining order against the health department.

In his order, Forsthoefel wrote that the owners were “being denied their civil liberties, including the right to earn a living and operate a commercial enterprise, without due process of law.”

The ruling notes that county health departments are only authorized to revoke operating licenses without a hearing if there’s an immediate danger or if other violations of state law.

However, “if the State’s Order recognizes exceptions to a blanket mask wearing rule and as such would not consider the lack of wearing a mask an immediate danger to the public health, then it begs the question as to whether the failure to wear a mask for any reason could ever constitute a basis for finding an immediate danger to the public health,” Forsthoefel wrote.

As such, the restaurant reopened July 25, Cleveland Scene noted, citing the order.

“We continue to view the State’s mask requirements, like all of the Orders of the Ohio Department of Health thus far, as unenforceable advice that may or may not be wise. Accordingly, we will continue to protect Ohioans when overreaching state or local health departments attempt to enforce these requirements,” Thompson said.

Meanwhile, Ashland County Prosecuting Attorney Christopher Tunnell said his office would not pursue the case on behalf of the health department further.

“The Prosecuting Attorney has thoroughly reviewed the matter and is of the opinion that the suspension was contrary to law and that there are no defenses which would not be frivolous,” Tunnell said.

Mask requirements remain controversial around the country, with some claiming they help stop the spread of coronavirus while others say they do little-to-nothing to stop COVID-19 and are patently illegal.

Presumptive Democratic presidential nominee Joe Biden said last month he would use the power of the federal government to implement and enforce a nationwide mask mandate for all Americans venturing out in public.

“The one thing we do know is these masks make a gigantic difference,” he said, as quoted by The Daily Beast. “I would insist that everybody out in public be wearing that mask. Anyone to reopen would have to make sure that they walked into a business that had masks.”

He then claimed that, as president, he would have the authority to implement such a mandate.

“From an executive standpoint, yes I would… I would do everything possible to make it required that people had to wear masks in public,” he said.

Georgia Gov. Brian Kemp has taken a different tact, however, signing an executive order earlier this month banning localities from requiring masks be worn in public.

“[A]ny state, county, or municipal law, order, ordinance, rule, or regulation that requires persons to wear face coverings, masks, face shields, or any other Personal Protective Equipment while in places of public accommodation or on public property are suspended to the extent that they are more restrictive than this Executive Order,” the 41-page document stated.

Health experts also differ on whether masks are truly effective in stopping the spread of the virus.

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Jon Dougherty

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