Date: Mon, Oct 26, 2020
Subject: Letter to Police Chief Walsh regarding masks
Location: Great Barrington, MA
Dear Chief Walsh,
Thank you for returning our call on Saturday. You were very pleasant to speak with and helpful. As we had mentioned during our discussion, we had a good conversation with Sheriff Bowler’s attorney, Daniel Sheridan, last week and he recommended that we call you. Please note that we have copied a number of officials so that they are also aware of our concerns as we have heard similar complaints from others throughout Berkshire County. If you would confirm receipt of this email it would be very much appreciated. Thank you!
We realize that this is an unprecedented time for everyone (for town officials, local businesses, and community members alike). We also realize that what has been happening here in Berkshire County is being done with the best (albeit misinformed) of intentions, but our local businesses have been breaking the law and this needs to stop immediately. We have listed the laws at the end of this letter.
It should be noted that in each place where this has occurred in Great Barrington, the businesses have claimed they are following the Great Barrington Health Department and governor’s guidance. As we mentioned, we also spoke with Rebecca Jurczyk from the Great Barrington Health Department and we did get the impression that she wants the best for all concerned and is willing to look into the matter. We would like to rely on your experience Chief Walsh to help clear up this situation so that our business and community members are not confused about the law. And if confusion remains in some cases, we would like to be able to call on your police officers for help with harassment and discrimination issues (from either business owners, employees and/or community members) when they are threatening, with confidence that your officers have a thorough understanding of our constitution and state and federal laws.
Great Barrington businesses that are public accommodations are claiming they are “private businesses” and as such have the right to make whatever store policies they wish, even if these policies break state and federal law. When we spoke with one of your police officers, they were also under the impression that this was acceptable. We tried explaining that a business cannot just make any policy they wish if it breaks a law (even now) . . . they cannot for example make a policy that says that no black people, or people that use wheelchairs, can shop in their store because it will make others uncomfortable. As a public accommodation they are bound by the law even during this chaotic time. In fact, as I’m sure you will agree, following the law during a time of unrest is more important than ever.
Two specific examples we will provide are Berkshire Food Co-op, and Guido’s Fresh Marketplace (but note that this is also happening in medical places like East Mountain Medical and Berkshire Eye, and in hardware stores like Carr and many more. Note that Berkshire Bank has illegal signs on their door). The businesses have been physically blocking people who are unable to wear masks from entering their businesses, and when they have been able to get by, have refused to check out their purchases when they approach the cash register. At times, some employees are verbally abusive, which constitutes harassment. When we spoke with Sheriff Bowler’s attorney about this he said that harassment is illegal and that we should call you. Businesses say it will make some customers uncomfortable allowing people that are unable to wear face coverings inside, so that gives them the right to break the law. But I ask you, what would happen if someone were to tell a police officer that they are uncomfortable driving less than 80 miles per hour on the side streets of Great Barrington or that they found stopping at red lights inconvenient? The law is the law of course.
Both Berkshire Food Co-op, and Guido’s Fresh Marketplace say they are providing fair and equal service to people that are unable to wear face coverings by providing curbside service, but this is untrue for the following reasons:
A Potential Solution - Legally, those that are unable to wear a face covering must be allowed into any place of public accommodation. But, we do have one suggestion for stores if this will make them more comfortable. Stores like Guidos and Berkshire Co-op could offer one aisle at checkout just for those that do not wear masks (this would not break any laws that I am aware of). Places like East Mountain Medical and Berkshire Eye can designate a separate area for people without masks to sit and wait. Although we must say, it reminds us of racial segregation — do we really want a country like this when we have now found out that the COVID-19 virus has a survival rate according to the CDC of 99.997% for age 0-19, 99.98% for age 20-49, 99.5% for age 50-69, and 94.6% for age 70 plus. It would help considerably if all health department officials made the attached facts more clear to the public to help counter the misleading and inaccurate propaganda they are hearing from the mainstream media and political officials and organizations.
US STATE AND FEDERAL LAW
(1) It is UNLAWFUL for the owner of a business or an employee to require someone to wear a mask. There is no mask law in Massachusetts (no code on the books) requiring people to wear face coverings.. Even if they are a licensed medical doctor who has examined the patron and have determined that the person is physically fit enough to restrict their breathing and to breathe excess carbon dioxide while on their premises, the person still has the right to choose whether to wear a mask or not. Recommending that someone wear a mask, which is designated by the FDA as a “medical device” is the unlicensed practice of medicine, which is a violation of Massachusetts General Laws, Part I, Title XVI, Chapter 112, Section 6. Unauthorized or unregistered practice of medicine will be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment for not less than one month nor more than one year, or both.
(2) It is UNLAWFUL for the owner of a business or an employee to take someone’s temperature. Gathering vital statistics is a violation of the 4th Amendment, which protects a person’s right to privacy.
(3) It is UNLAWFUL for the owner of a business or an employee to attempt to enforce local ordinances. A business owner or an employee is not a law enforcement officer and impersonating a law enforcement officer is a crime in this state under Massachusetts General Laws, Part IV, Title I, Chapter 268 Section 33: Impersonating an officer carries the penalty of a fine of not more than four hundred dollars or by imprisonment for not more than one year.
(4) It is UNLAWFUL for the owner of a business (a place of public accommodation) or an employee to prohibit someone from entering their establishment. U.S. Federal Civil Rights Law, Title II requires free and equal access to all services and facilities WITHOUT DISCRIMINATION. Having someone else shop for them is not equal. Further, the non-discrimination laws in this State, under General Laws, Part IV, Title I, Chapter 272, Section 98 further prohibit a business from preventing entry to the full enjoyment of the business establishment.
(5) Any claim of “store policy” or “no mask, no service” is NULL, VOID and UNLAWFUL as no business may enforce policy that violates established law.
(6) Neither the owner of a business (a place of public accommodation) or an employee may prevent the lawful entry of a patron – regardless of whether they are wearing a face covering or not. Attempting to prevent the entry of a patron to a business establishment, which is a place of public accommodation is a violation of an IMPLIED, IRREVOCABLE LICENSE that the business has granted to the public.
7) According to Governor Baker’s mask guidance that went into effect on May 6, EXCEPTIONS include children under the age of 2 and those unable to wear a mask or face covering due to a medical condition. According to Massachusetts Dept of Public Health notices, they specifically state: EXCEPTIONS for wearing a face mask or covering include situations that may inhibit an individual from wearing a face-mask safely including, but not limited to: Those who cannot breathe safely; Those who, due to a behavioral health diagnosis, are unable to do so; Those communicating with people who rely upon lip-reading; Those who require supplemental oxygen to breathe; and Those who are exercising outdoors and are able to keep physical distance from others. There is no mask law, this is guidance. Legally, in this country citizens are only obligated to follow the law. At no time have our state and federal harassment and discrimination laws been legally revoked or suspended this past year. These laws ARE currently in effect for all citizens and businesses.
8) According to Massachusetts General Laws, Part IV, Title I, Chapter 265, Section 43A: Criminal harassment; punishment. (a) Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 1/2 years or by a fine of not more than $1,000, or by both such fine and imprisonment. (b) Whoever, after having been convicted of the crime of criminal harassment, commits a second or subsequent such crime, or whoever commits the crime of criminal harassment having previously been convicted of a violation of section 43, shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than ten years.
9) According to HIPAA Privacy Rule, and also According to MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH 105 CMR - 316.040 (A), a person who declines to wear a mask or cloth face covering because of a medical condition shall not be required to verify the condition or that the exemption applies, and they shall not be required to produce documentation verifying the condition. This rule is in place so that people with disabilities do not have to embarrass themselves by listing their personal medical history and problems to be judged by others. These laws have not been legally eliminated or suspended because of current events -- they are still very much in effect and must be enforced.
10) According to MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH 105 CMR - 316.040: Business Authority (B) A business must allow entry to any individual not wearing a face mask or covering pursuant to 105 CMR 316.010(C) or due to one or more of the exceptions set forth in 105 CMR 316.030
We would appreciate anything you can do to coordinate the efforts of all Great Barrington town and health officials as well as anyone else possible within Berkshire County to help educate our local citizens and businesses about the laws revolving around and connected to COVID-19. It is unfortunate that so much misinformation has been perpetuated, not just here but throughout the country. As a result, as I'm sure you know, an incredibly high number of lawsuits are popping up all over the country (click here to view just some of them) including those against our governor in Massachusetts. If Pennsylvania's win against their governor is any indication of what is to come, and we believe it is, most of the other lawsuits will be won as well. If we can follow the actual laws in Berkshire County and not misinformation, and our health departments can publicly share in writing clear legal information and the positive facts produced by the CDC (including the fact that death rates are markedly down and that a "case" does not at all necessarily mean that you are infected and will die, will help avoid further hysteria and lawsuits here in the Berkshires.
Special thanks to Peggy Hall of The Healthy American www.thehealthyamerican.org in association with www.privacyfight.com for their help.