What is the Authority of the County Health Officer

The pandemic we’re experiencing in 2020 is causing an outbreak of legal issues.  With every executive order, mandate, suggestion, or statistical information we receive, I am left bewildered how such events can take place and under what authority.

Nashville’s Chief Medical Director of Health issued Order 8 on June 28, 2020 to require masks worn in public.

In the past 12 years or so since I completed law school, I stood before the Tennessee Supreme Court and the United States Supreme Court to raise my hand and take an oath to defend the laws of the State of Tennessee and the United States of America.  It is with that in mind that I follow up with a little research into the validity of the latest outbreak of mandates to wear a mask.  Are they legal?  Are they enforceable?  How will they be enforced and what is the penalty?  Is the state really going to put a person in jail for 30 days for not wearing a mask?  Will one be required to wear a mask in jail?  What if my method of protest is to not wear a mask?  How does that compare to the destruction of property as we’ve seen in recent weeks as a matter of protest?

There are so many questions and I don’t have the answers.  All I can do is disseminate a little information as I continue research in my free time.  What I do know is that courts exist for a reason.  Two attorneys on opposing sides and a judge are all trained to read and interpret the law but there would be no court if the two attorneys agreed.  More often than not, the judge has a third opinion on the same subject.

I have so many thoughts on these issues but none of that matters.  If someone, like me, gives you actual facts, you can make informed decisions about your civil duties, obedience, and rights the same as you make informed decisions about your own health care.

With that, here are just a few laws I found that potentially pertain to a new order to wear masks in the City of Nashville.

Stay healthy!

Tenn. Code Ann. 68-2-609. Orders of county health officer.

The county health officer is empowered to order:

 1.       The quarantine of any place or person, if the county health officer finds that quarantine is necessary to protect the public health from an epidemic;

2.       The closure of any public establishment, facility or building if the county health officer finds unsanitary conditions of such a nature and extent to significantly threaten the public health; or

3.       The closure of any public establishment, facility or building, if the county health officer is otherwise authorized by law to take that action.

Tenn. Code Ann. 68-2-608. Administrative orders and judicial remedies of county health director.

 (a)

1.       Whenever it appears to the county health director that a condition or activity exists or is threatened that may violate the laws, regulations, resolutions, ordinances, permits or licenses that are within the enforcement responsibility of the county health director, the county health director may, after notice and opportunity for a hearing, issue an order for any of the following:

a.        Cessation of the activity;
b.       Correction of the condition or activity;
c.        Removal of the condition in whole or in part;
d.       Revocation, suspension or imposition of conditions on a license or permit; or
e.        Abatement of a nuisance that involves a violation of the health laws of the state and that can be reasonably expected to adversely affect the health of the public.

2.       Any person served with an order pursuant to subdivision (a)(1) shall immediately comply with the order at the person's own expense.

(b)
Whenever a condition or activity exists or is threatened that, in the opinion of the county health director, causes or threatens an imminent or immediate danger to the public health under circumstances in which an opportunity for prior hearing might further seriously endanger the health of the public, the county health director may issue an order requiring the actions listed in subdivision (a)(1). The person to whom the order is addressed shall immediately comply with the order. However, such person shall be provided an opportunity for a hearing as promptly as is reasonable under the circumstances.

(c) 
The county health director may petition the appropriate chancery court for injunctive relief and any other remedy available at law or equity as necessary to enforce an order issued pursuant to this section, or to otherwise require compliance with the laws, regulations, resolutions, ordinances, permits or licenses that are within the enforcement responsibility of the county health director. It shall not be necessary that an order be issued prior to seeking relief in chancery court. The court shall have the power to assess the cost of corrective measures against any and all persons failing to comply with the order.

Tenn. Code Ann. 39-13-108. Rules and regulations regarding transmission of HIV — Quarantine — Violations.

(a) 
The department of health, acting pursuant to § 68-10-109, shall promulgate rules regarding transmission of human immunodeficiency virus (HIV). The rules shall include specific procedures for quarantine or isolation, as may be necessary, of any person who clearly and convincingly demonstrates willful and knowing disregard for the health and safety of others, and who poses a direct threat of significant risk to the health and safety of the public regarding transmission of HIV.

(b) 
The department is authorized to quarantine or isolate a person within a secure facility, after exercising other appropriate measures, if the person continues to pose a direct threat of significant risk to the health and safety of the public. Any person so quarantined or isolated within a secure facility, who intentionally escapes from the facility, commits a Class E felony.

Tenn. Code Ann. 68-2-602. Violations of rules and regulations of county board — Penalty.

Any person who violates a county board of health regulation commits a Class C misdemeanor.

Tenn. Code Ann. 40-35-111. Authorized terms of imprisonment and fines for felonies and misdemeanors.

(a) A sentence for a felony is a determinate sentence.

(b) The authorized terms of imprisonment and fines for felonies are:

(1) Class A felony, not less than fifteen (15) nor more than sixty (60) years. In addition, the jury may assess a fine not to exceed fifty thousand dollars ($50,000), unless otherwise provided by statute;
(2) Class B felony, not less than eight (8) nor more than thirty (30) years. In addition, the jury may assess a fine not to exceed twenty-five thousand dollars ($25,000), unless otherwise provided by statute;
(3) Class C felony, not less than three (3) years nor more than fifteen (15) years. In addition, the jury may assess a fine not to exceed ten thousand dollars ($10,000), unless otherwise provided by statute;
(4) Class D felony, not less than two (2) years nor more than twelve (12) years. In addition, the jury may assess a fine not to exceed five thousand dollars ($5,000), unless otherwise provided by statute; and
(5) Class E felony, not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by statute.

(c) 

(1) A sentence to pay a fine, when imposed on a corporation for an offense defined in title 39 or for any offense defined in any other title for which no special corporate fine is specified, is a sentence to pay an amount, not to exceed:

(A) Three hundred fifty thousand dollars ($350,000) for a Class A felony;
(B) Three hundred thousand dollars ($300,000) for a Class B felony;
(C) Two hundred fifty thousand dollars ($250,000) for a Class C felony;
(D) One hundred twenty-five thousand dollars ($125,000) for a Class D felony; and
(E) Fifty thousand dollars ($50,000) for a Class E felony.

(2) If a special fine for a corporation is expressly specified in the statute that defines an offense, the fine fixed shall be within the limits specified in the statute.

(d) A sentence for a misdemeanor is a determinate sentence.

(e) The authorized terms of imprisonment and fines for misdemeanors are:
(1) Class A misdemeanor, not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute;
(2) Class B misdemeanor, not greater than six (6) months or a fine not to exceed five hundred dollars ($500), or both, unless otherwise provided by statute; and
(3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.

(f) In order to furnish the general assembly with information necessary to make an informed determination as to whether the increase in the cost of living and changes in income for residents of Tennessee has resulted in the minimum and maximum authorized fine ranges no longer being commensurate with the amount of fine deserved for the offense committed, every five (5) years, on or before January 15, the fiscal review committee shall report to the chief clerks of the senate and the house of representatives of the general assembly the percentage of change in the average consumer price index (all items-city average) as published by the United States department of labor, bureau of labor statistics and shall inform the general assembly what the statutory minimum and maximum authorized fine for each offense classification would be if adjusted to reflect the compounded cost-of-living increases during the five-year period.

From Nashville’s own municipal ordinance: 

11.12.040 - Disguises—Prohibited in public places—Exceptions

(a)
For the purposes of this section, the following words and phrases shall have the meanings respectively ascribed to them by this subsection:

1.       “Mask” means any mask, device or hood whereby any portion of the face is so hidden or covered as to conceal the identity of the wearer.
2.       "Public place" means all walks, alleys, streets, boulevards, avenues, lanes, roads, highways or other ways or thoroughfares dedicated to public use or owned or maintained by public authority; all grounds and buildings owned, leased by, operated or maintained by public authority; all buildings owned, leased or operated for the use of organizations enjoying all tax-exempt privileges as a charitable use.

(b)
No person, while masked, shall be or appear on or in any public place in the metropolitan government area.

(c)
The following persons are exempted from the provisions of this section:

1.       All children under the age of seventeen;
2.       All workers while engaged in work wherein a covering is necessary for physical safety and protection against occupational hazards or because of the nature of the occupation or trade.
3.       Persons while wearing traditional holiday costumes;
4.       Persons while engaged in theatrical productions or masquerade balls;
5.       Persons wearing gas masks in civil defense drills and exercises or emergencies.