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How Virginia’s Mask Rule Will Be Enforced

Two face masks
File photo of face masks (Charlie Fishburn/VPM News)

Virginians could face a misdemeanor charge for violating Gov. Ralph Northam's new order requiring masks in most indoor settings. But the administration and legal experts are downplaying the likelihood of many prosecutions.

The commonwealth is set to join a handful of states that require masks in most indoor settings, including retail stores, public buildings and barbershops.

Gov. Ralph Northam’s  new order goes into effect on Friday. People who deliberately ignore the rule could ultimately face a misdemeanor charge -- a fact that has galvanized Republican opposition to the move, and seemed to contradict Northam’s statements on the issue.

But the order will be enforced by the Virginia Department of Health rather than police officers and sheriffs. And the administration says they’ll rely on warnings and education, targeting repeat offenders if all else fails.

“We’re not talking about someone who forgets their mask,” Clark Mercer, Northam’s chief of staff, said in a press conference on Tuesday. “This is for businesses who would be grossly negligent in refusing to adopt this policy.”

However, the latest order itself applies to customers, not businesses. It references a section of the  health code that allows health officials to report violators -- except those under the age of 18 -- to a judge. That judge could then choose from a number of options, ranging from dismissing the case to a civil fine to a misdemeanor charge.

While the new rules apply to customers, many businesses, including restaurants and salons, are required to provide masks to employees in customer-facing roles under Northam's Phase One order. Mercer said VDH could repeal a business’s operating licenses in cases where businesses were “grossly negligent,” though he said a warning would come first.

People who notice masks violations should first talk to the business owner and call their local health department if that fails, according to Alena Yarmosky, a spokesperson for Northam.

Adam Gershowitz, a law professor at William and Mary, said the administration appeared to be using the rules as a symbolic deterrent.

“They’re not going to go out and start locking people up with handcuffs,” Gershowitz said.

A more sweeping order would be especially hard to enforce given the many exceptions to the mask rule, which range from eating to health problems that prevent mouth coverings, Gershowitz said.

“This is providing a lot of discretion and open-ended ability to make decisions on a case-by-case basis,” he said.

University of Richmond law professor Hank Chambers said the order was unlikely to result in many prosecutions.

“At the end of the day, what the governor really wants is compliance,” Chambers said.

Still, the order allows judges to charge violators with a misdemeanor.

Northam said on Tuesday he hopes to avoid that scenario.

“If we were to do this through law enforcement, the only authority we have at this time is through a Class 1 misdemeanor, which actually can carry jail time and a large fine,” Northam said. “And that’s not what we’re trying to do here.”

But that scenario remains a possibility unless the General Assembly changes the law. The governor said he wants them to reduce the penalty to a civil fine when lawmakers meet again in a special session this summer.

Top Republican lawmakers in the House and Senate issued statements on Tuesday slamming the order and accusing Northam of hypocrisy given  his failure to wear a mask in a visit to Virginia Beach over the weekend.

The Virginia Chamber of Commerce also expressed concerns that their members could lose licenses because of the mask rule.

“It is unreasonable to hold them accountable for the enforcement of this new mandate, which could create unsafe situations for workers tasked with confronting non-compliant customers,” Chamber president Barry DuVal said in a statement.

Health experts say masks are among the best tools at blunting the spread of COVID-19.

Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.
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