Can a Business Ask You to Leave for not Wearing a Mask?

How the World Is Moving Forward without Mask Mandates

Ever since the mask mandates have been put into place, conversations have begun asking whether or not these mandates are constitutional. For a concept to be constitutional, it needs to be in accordance with or authorized by the Constitution of the United States. The answer to this question is slightly unclear because the Constitution does not contain any language surrounding masks. However, the consensus has generally been that because the Constitution does not contain this language, a mask mandate cannot be unconstitutional, especially in such unprecedented times.

In May of 2021, the Centers for Disease Control and Prevention announced that fully vaccinated adults can safely resume activities indoors or outdoors without masks or distancing. In response, as of June of 2021, mask mandates are largely being lifted, but some businesses are still posting notices on their door that a mask is required to enter.

Most of the major retailers throughout the U.S., like Target Walmart, and Costco, have dropped their mandates, while others are a bit less lenient on the rules. Other retailers are recommending that non-vaccinated individuals wear masks, although they are not taking steps to make them prove their status.

The U.S. does not have a vaccine passport system, so this is largely a matter of an honor system. However, with every rule, there will be rulebreakers, as well as those who are unhappy about the rules. While customers are free to feel however they please about the rules, a business is also free to refuse service to customers who do not follow them. Generally, businesses have a right to refuse customers for any reason they see fit, with the exception of discrimination such as gender or racial discrimination.

The ADA and Face Mask Policies: Disabilities That Require a Face Mask Exemption

There is one important exception to this rule that is leaving many Americans confused. According to the American with Disabilities Act, business owners cannot refuse service for customers who are physically unable to wear masks, and they are not allowed to ask individuals about their specific disabilities or request supporting documentation of a disability. This is where the rules become blurry and where some individuals have been avoiding face-covering requirements. Some examples of individuals who might not be able to wear a face mask include:

  • Individuals with asthma, chronic obstructive pulmonary disease (COPD), or other respiratory disability
  • Those with PTSD, severe anxiety, and claustrophobia
  • Some individuals with autism who are sensitive to touch and texture
  • Individuals with cerebral palsy who have difficulty moving the small muscles in the hands, wrists, or fingers and might not be able to put on or remove a mask without assistance
  • Individuals who use mouth control devices like a sip and puff to operate a wheelchair or assistive technology or who uses their mouth or tongue to use assistive ventilations and will be unable to wear a mask

This list is not exhaustive, but it can be helpful for government officials and business owners in order to understand the population who would find it difficult or impossible to comply with mask mandates. Those who have disabilities have clearly defined legal protections under both federal and state law.

Title II of the ADA prohibits disability discrimination in “programs and activities of state and local government entities.” Furthermore, Title III prohibits disability discrimination “in the full and equal enjoyment of…services” at places of “public accommodation.” Privately owned establishments include restaurants, hotels, and grocery stores, some of which still have mask mandates.

For business owners or individuals with disabilities who might have questions about the ability to enforce mask mandates, The U.S. Equal Employment Opportunity Commission has issued guidelines. The organization helps enforce disability rights in employment while accommodating disabled employees. An individual must have a legally recognized disability to enjoy the protections of the ADA. This becomes a bit complicated because in order to establish that the individual has a disability under the law, there are specific legal standard that need to be met.

It is important to note that the Americans with Disabilities Act does not allow anyone, disabled or otherwise, to ignore mask requirements without precautions being taken. The ADA does not offer blanket protections, and accommodations are given on a case-by-case basis.

What Happens if a Business Asks You to Leave for Refusing to Wear a Mask?

Although the ADA exemptions can make the legal waters a bit murky, it is important to be aware of the trespassing laws so that you do not end up facing charges. If an owner or employee asks you to leave a bar or restaurant and you refuse to leave, you could be charged with criminal trespassing. Typically, an establishment asks customers to leave if they believe they are acting unreasonably or without justification.

Under Florida law, a criminal trespass occurs when an individual willfully enters or remains upon property without authorization. In addition, if they are initially allowed onto the property, but refuse to depart upon request of the rightful owner or occupant, they can also be charged with trespassing. This is what would happen when individuals refuse to wear a mask and refuse to leave the premises upon being asked.

Throughout the pandemic, we have witnessed many people fall into trespassing charges for refusing to wear masks. For example, this story about a parent in Irondequoit, New York who had to face a judge after being arrested for not wearing a mask at a high school basketball game. The parent is facing criminal trespassing charges and 90 days in jail. This is certainly not an ideal outcome, but if you are in a similar situation, it helps to have an experienced lawyer like the ones at The Wiseman Law Firm who can defend your case.

Best Defenses to a Trespassing Charge

Most people who find themselves facing trespassing charges did not expect to find themselves in this situation. More often, we see that people felt they had a right to be where they were, as was likely the case with the parent at the high school basketball game. The good news is that there are quite a few defenses we can use to combat these kinds of charges.

In a trespassing case, the state of Florida has the burden of proving that you are guilty of trespassing. This means the prosecutors will have to build a case that proves you acted willfully, with a specific intent, and successfully interfered with another person’s rights. The state needs to have evidence to support each of these facts, so when we go about defending your case, we will work to prove that one of the facts is false.

In order to do this, we will investigate the case, review the evidence, and look at it from every angle. When it comes to investigating, we will leave no box unchecked. This includes interviewing any witnesses and consulting with experts if we think professional insight might be helpful. We will also look into your interactions with the police and make sure you were treated properly throughout the process. Some of the legal arguments that we can make to win your case include:

  • False accusations
  • Mistaken identity
  • Unintentional actions
  • Lack of intent required to trespass
  • Lack of interfering with property rights

Trespassing is a crime that can come with some harsh penalties, and can cause some people to lose their professional licenses. The best way to defend your case is to have a team of lawyers on your side who will fight for your protections every step of the way.

To learn more about how to avoid trespassing chares or to find out what to do when faced with them, call The Wiseman Law Firm at (407) 708-9127 or contact us online.

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