NEW HANOVER COUNTY –– New Hanover County’s new mask mandate isn’t being officially enforced by the parties with the power to uphold it.
Both the Wilmington Police Department and the New Hanover County Sheriff’s Office are not enforcing it. The county’s public health director, who issued the mandate, said any enforcement (“only when absolutely necessary”) would be a law enforcement matter.
If the county is leaning on law enforcement to uphold the order, and they aren’t enforcing it, then who is?
Announced Aug. 17, three days before it went into effect Friday, the rule is a hazard abatement order issued by county health director David Howard to mitigate a public health nuisance. It arrived as New Hanover Regional Medical Center acknowledged it was treating the highest number of Covid-19 patients since the onset of the pandemic, while struggling with a nursing shortage and nearly maxing out its resources due to the ultra-contagious delta variant.
Above all, county officials tout the mandate as an opportunity to educate rather than to be punitive. Unlike Gov. Roy Cooper’s mask mandate enacted during the pandemic lockdown last year, the county’s requirement could theoretically result in violations being issued to both individuals and organizations. Cooper’s order (which specifically barred law enforcement from criminally enforcing the face-covering order against individual workers or customers) was widely criticized for placing the burden of enforcement on business owners, putting wait staff, cashiers, and front office employees in a precarious position as they encountered defiant visitors.
During the public comment period of the board of commissioners meeting Monday, several speakers decried the county’s alleged violation of their personal liberties. Matt Dulo warned anti-maskers would “get violent and resist” the mandate. He said the faction wouldn’t sue business owners who refuse to allow unmasked patrons inside but would instead target county officials.
“We’re going to use the full force of the legal system to make sure you feel the burn of these unconstitutional mask mandates,” he said.
In the county meeting, several public speakers were not masked (giving a speech 20 feet apart from an audience is an exemption to the mandate), as were multiple attendees. Unmasked attendees claimed various exemptions to the order when they entered the building, according to a county spokesperson (additionally, Howard told WECT the county would not require proof of exemptions and would rely on an individual’s honesty).
A Facebook group with thousands of members has compiled a spreadsheet of “freedom places” –– i.e. businesses that aren’t enforcing the mandate. Dozens of posts out businesses following the county rule, in turn prompting members of the group to withhold patronage.
“We do not assume anyone on social media represents a business that someone posting may have no official affiliation with,” Howard wrote in a statement. “We remain open and available to all establishments that may want our guidance on how to navigate the order.”
Health officials are not actively looking for non-compliance, Howard said, but are accepting violation tips online. The county has received several complaints through its call center that have been followed up on but none so far online, according to a county spokesperson.
Howard said the department responds “as always, only to valid and honest individual reports from citizens regarding violation of this rule, the same as we respond to reports of any ordinance non-compliance or other issues citizens would like us to look into.”
“[O]ur staff have much important work on a daily basis, and of course law enforcement has many priorities,” he wrote. “We work in service to our community, and even if it may not seem this way today, the Order and the Rule are in service to our community, our whole community.”
Local health directors are empowered by state law to issue abatement orders to mitigate public health hazards and nuisances, carrying a punishment of a misdemeanor. The statutes that authorize these orders also state the local health department “shall have a lien” on the property of the violating party to cover the cost of enforcement (language likely designed for a premise like a restaurant –– not individuals); however, the county has not mentioned issuing a lien anywhere in its mask mandate messaging.
Typically, these orders don’t apply across entire counties. Before the pandemic, this mechanism was more common in isolated circumstances, Howard explained, after all efforts to mitigate the given public health threat were exhausted or a threat was so immediate it warranted a prompt disciplinary measure to protect customers. These orders are issued several times a year, according to Howard, with immediate suspensions for food establishments if critical issues are discovered, until they can be remedied with the assistance of public health staff.
“This order spans the entire community because of the urgency and seriousness,” Howard wrote in a statement, noting the widespread threat of Covid-19. “While most do not perceive a grave threat to themselves, the threat is there, and is very real for some of us, and the only way to reduce that threat is for all of us to join together.”
The order will remain in effect indefinitely, or until: 1. The county health and human services board makes an alternative determination on the rule; 2. The health board issues its own rule (which is currently pending); or 3. The percent positivity rate remains at 5% or below “for a period determined to have controlled transmission as to substantially protect public health,” the order states.
Twelve exemptions to mask-wearing are listed, including allowances for eating, medical issues, being at home or in a personal vehicle, toddlers, and more. (There’s also a blanket exemption for religious and spiritual ceremonies and “other activities constituting the exercise of First Amendment rights” –– a provision potentially subject to broad interpretation.)
It applies to the entire county, including within municipal bounds (Kure Beach Police Department could not immediately clarify whether it would issue violations of the health order if necessary; Carolina and Wrightsville Beach police departments did not respond to inquiries).
Answering a question posed on its FAQ page for the order and proposed rule, the county tells business owners dealing with customers who refuse to comply to call 911. “If someone continues to not comply and refuses to leave your premise after you have asked them to leave, you can call 9-1-1 to report the person for violating the order of abatement,” the answer states.
Lt. Jerry Brewer said the sheriff’s office could potentially assist business owners struggling to remove patrons from their property who refused to comply by charging them with trespassing. As far as the order itself, deputies are not enforcing it.
“At this point, the sheriff has said we’re not going to cite people for not wearing a mask,” Brewer said.
Deputies within the jail are wearing masks, Brewer said, but the office has no additional mask-related policy in effect.
Wilmington Police Department enacted a mask policy, effective Aug. 20, the same day the county’s order went into effect. The department’s “special order” mandates WPD officers to wear masks in all indoor establishments where the public is permitted, with eight exceptions, including if they are in pursuit of a suspect or are removing a face covering for identification purposes.
Officers “do not enforce mask rules,” WPD spokesman Brandon Shope said, but may be involved in mask-related trespassing matters. So far, WPD has issued zero mask-related trespassing citations, according to Shope.
Though rare, if an issue were to arise, Howard said law enforcement would be relied upon to follow through on enforcing the violation. “Health and Human Services and Public Health do not employ sworn law enforcement officers, our law enforcement partners would be called upon, only if absolutely necessary, to carry out any actions related to arrestable charges,” he said.
The health and human services board will host a public hearing on Aug. 31 to review the proposed health rule, which would replace Howard’s abatement order. The draft rule is available for public comment through Aug. 30 at noon.
Though the rule includes the possibility of county staff members being eligible to function as a “compliance officer,” Howard said “we will leave discretion of enforcement to law enforcement.”
Send tips and comments to Johanna F. Still at firstname.lastname@example.org