The following points should be shared with business owners who have been operating under the belief that they are forced to: be the governor's "face mask police;" limit their capacity to 50 persons; or, refuse to serve customers inside their bars:
- "...the mask mandate cannot be enforced with criminal or financial sanctions."
- ...threats to a business' occupational license or other forms of threats to the business...also would violate basic due process and could expose the government actor to civil liability."
"Neither the Louisiana Homeland Security and Emergency Assistance and Disaster Act ('LHSEADA'), La. R.S. 29:721, et seq., nor the Louisiana Health Emergency Powers Act ('LHEPA'), La. R.S. 29:760, et seq., authorize the governor, unilaterally, by executive proclamation, to make business his proclamation enforcement police."
- "And they may not be threatened with "citations" or otherwise sanctioned for refusing to be his enforcement arm."
- "To the extent that the order purports to deputize business owners to interrogate their customers and make on-the-spot compliance enforcement determinations, the business owners may be found to have been acting under color of state law and themselves be subjected to civil rights and/or private tort liability, spawning a significant amount of costly and distracting litigation for which hard-pressed businesses are neither prepared nor insured."
- "The mask mandate flatly violates due process, separation of powers, the delegation clause, state public anti-discrimination laws, and La. R.S. 29:724(E); and it is unenforceable."
"The 50-person Limit"
"The 50-person limit is also too vague to be constitutional."
- "It does not distinguish between the size of the indoor space and its capacity. Thus, the Superdome and a 10 x 10 room are treated the same."
- "...it does not distinguish between outdoor spaces, it does not define 'close proximity', and it does not define the scope of the phrase 'unable to maintain strict social distancing.'"
- "...the large number of exemptions (Albertsons, Lowes, Ace Hardware, alcoholic beverage store, to name a few that have remained open for months without restrictions), undermine any rational basis for the rule. A rule that has so many exceptions that it undermines its very purpose is unconstitutional because it is irrational and fails to serve a legitimate government purpose."
"Closure of 'bars'"
- "...the Governor has no authority to discriminate against a single business type statewide in the absence of far more data to support such a draconian and arbitrary exercise of power."
- "...suspending or threatening the business or alcohol permit of any business would likely amount to violation of due process as these permits are recognized property interests protected under the due process clause. It could also result in a 'constructive taking' via government regulation."
Our Guvnah has accused the Attorney General of being political with this opinion; yet, it is the Guvnah who has stated time and time again that the main reason he is attempting to impose these mandates is to guarantee his receipt of federal funding.
The Guvnah needs to BACK OFF!
The Attorney General agrees.
This needs to end.