Businesses can legally deny service if people do not abide by mask guidelines

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KNOXVILLE, Tenn. (WATE) — As businesses are reopening, some may be requiring visitors to wear masks when entering, with the potential of denying service if visitors don’t comply; many are wondering if businesses can do that? Put simply, yes, they can.

While it is not a law, people must abide by the rules set by a business as they are considered private locations. If one refuses to abide by their requirements upon entering, that business can legally deny service.

Akram Faizer, a professor of law at The Duncan School of Law at Lincoln Memorial University, reminds people that they are invitees and should follow their rules.

The Centers for Disease Control and Prevention guidelines, along with the Knox County Health Department’s guidelines under Phase One of reopening the economy suggest wearing a cloth face covering or mask when in public places.

The mask is one of the key parts to helping stop the spread of the coronavirus.

Faizer says when it comes to rules and regulations, the state has the right to regulate its people for reasons that are rationally related to a legitimate government interest including public health and safety.

“The word ‘privacy’ is not textually within the TN or US Constitutions.  That said, it is deemed to be protected by the Due Process Clause of the Fifth Amendment to the US Constitution (when it is the US government acting and which reads no person ‘shall be deprived of life, liberty or property, without due process of law’) by the Due Process Clause of the Fourteenth Amendment (when it is state or local government acting and reads no state ‘shall deprive any person of the due process of law’) and Article I, Section 8 of the Tennessee Constitution, which says ‘That no man shall be taken or imprisoned, or dis-seized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land.’ 

The Courts have held that these provisions do not undermine the state’s ability to regulate for reasons rationally related to a legitimate government interest, for e.g. wear seat belts in cars, observe traffic laws, laws that disallow snake-handling in churches and, in this instance, requirements that we wear masks in public.  This is the state’s police power and it gives Tennessee the power to regulate its citizens for purposes of health and safety.  This is different from the U.S government, which has limited and enumerated  powers and explains why the state can mandate the wearing of face masks but not the feds.”

Akram Faizer, LMU Law Professor

While people may not technically be forced to wear a face mask; however, Faizer notes that you can be precluded from entering private businesses for not wearing one, if that is their policy.

Some concern regarding face masks is the inability to acquire one, but Faizer believes now that is not a huge hurdle to get over. For example, Faizer says, “Say you have to have a face mask to enter a grocery store, a court would look at it like well you could have called in and they would have delivered it for you.”

For people who may believe it is their constitutional right to choose to not wear a face mask, Faizer says to that ideology that the government has broad police powers to rationally regulate us for reasons like public health and safety, and for that reason a court would conclude that you can be legitimately disallowed from entering public places or private businesses for not wearing a mask.

Again, since businesses are private locations and we are invitees, we do not have the right to be in a business and must abide by their rules and regulations.

“They can have reasonable regulations but what they can’t do is discriminate against us for reasons like race and sex in terms of entering a business,” Faizer notes, “But certainly we don’t have a constitutional right to not wear a mask and put other people at jeopardy.”

At the end of the day, as health officials have said, it is best to wear the mask out in public during this global pandemic to help limit the spread and protect others.

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