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Mayors impose ‘directives,’ but have authority only for ‘orders,’ ‘injunctions’ after notice, hearing

From left, spokesman Mike Dunne and Hamilton County Mayor Jim Coppinger chat with a constituent outside the Hamilton County courthouse.
This directive on Hamilton County chin-diaper obligations is with no legal power, as it does not come from Jim Coppinger’s authority under the Tennessee health law at Title 68.

Jim Coppinger the mayor is mimicking Gov. Bill Lee’s courageous but unpopular style of governing by edict, without the trouble of an actual law.

By David Tulis / NoogaRadio 92.7 FM

Mr. Coppinger is ignoring lawful authority in the Tennessee health law which contains powers to quarantine any place or person and to shut any establishment that a “health officer finds unsanitary conditions of such a nature and extent to significantly threaten the public health.”

Instead, Gov. Lee’s method of using presumptive executive orders is the habit in Hamilton County. 

Mayor Coppinger, through the proxy of health department chief Dr. Paul Hendricks, has ordered as of July 6 that all people in public wear “a facial covering or mask which covers the mouth and nose at all times when indoors in all public and private buildings and when outdoors” with exceptions.

This document is dubbed a “directive.” That is outside the authority of the health department, which is granted authority to issue orders and injunctions. These powers are administered specifically upon individuals or particular situations determined to be in violation of “the laws, regulations, resolutions, ordinances, permits or licenses that are within the enforcement responsibility of the county health director.”

This power is exercisable only after notice and a hearing.

(a)(1) Whenever it appears to the county health director that a condition or activity exists or is threatened that may violate the laws, regulations, resolutions, ordinances, permits or licenses that are within the enforcement responsibility of the county health director, the county health director may, after notice and opportunity for a hearing, issue an order. Tenn. Code Ann. § 68-2-608

Administrative ‘law’ widely ignored

While most people comply and wear masks, the rule is not enforced in a single place in which I have gone as either journalist or radio station rep. There’s some spunk left in Americans. But officials know they can get far with empty threat and intimidation, because the spunk remaining among the people is thin gruel, mostly inert.

There is a threat power in the law for a person who violates a lawful order from the health department. “Any person who violates a county board of health regulation commits a Class C misdemeanor. Tenn. Code Ann. § 68-2-602.

But the health department directive is not a lawful order, and cannot be construed as enforceable, cite-able or arrestable. Any officer who arrests a person under a health edict commits an indictable crime by violating Tenn. Code Ann. § Title 40-7-103, grounds for arrest by officer without warrant. Why? Having a bare face is not a “public offense,” and so if the officer wants to arrest a person for that “offense” he must get a warrant from the magistrate at the jail or from a judge such as Gary Starnes in sessions court.

A panic has prompted elected officials in the Republican and Democrat parties to overturn constitutional government, its state actors acting in their skivvies, under their own personal authority.

The department by law has authority to issue orders and injunctions.  After a hearing, the judge can order the activity to stop, corrected, removed; he may order the “[r]evocation, suspension or imposition of conditions on a license or permit” or the “[a]batement of a nuisance that involves a violation of the health laws of the state and that can be reasonably expected to adversely affect the health of the public.”

This power can operate in an emergency. To a lawful order, the member of the public must “immediately comply.”

Even so, he has a right to a hearing because due process is a constitutionally guaranteed right:

(b) Whenever a condition or activity exists or is threatened that, in the opinion of the county health director, causes or threatens an imminent or immediate danger to the public health under circumstances in which an opportunity for prior hearing might further seriously endanger the health of the public, the county health director may issue an order requiring the actions listed in subdivision (a)(1). The person to whom the order is addressed shall immediately comply with the order. However, such person shall be provided an opportunity for a hearing as promptly as is reasonable under the circumstances. Tenn. Code Ann. § 68-2-608(2)(b)

If the person continues to refuse to comply, Dr. Hendrickson can apply to chancery court and get a hearing before either Judge Jeff Atherton or Pam Fleenor. Tenn. Code Ann. § 68-2-608(2)(c)

County cites no actions within law

County staff attorney Dana Beltramo indicates Mr. Coppinger has not evoked lawful coercive powers given to local health departments at Title 68-2-608 and at 68-2-609 cited above.

In response to an open records request, Mrs. Beltramo provided no documents showing the operation of the mayor or the department within lawful statute. I had requested the following:

  • Any document, directive, policy, order, guideline or rule under the authority of county power to issue orders pursuant to Tenn. Code Ann. Orders; county health officers.
  • Any document,  rule, correspondence, directive or other written information created in obedience to  
  • — Tenn. Code Ann. § 68-2-609 (1) The quarantine of any place or person, if the county health officer finds that quarantine is necessary to protect the public health from an epidemic;
  • — Tenn. Code Ann. § 68-2-609 (2) The closure of any public establishment, facility or building if the county health officer finds unsanitary conditions of such a nature and extent to significantly threaten the public health; or
  • — Tenn. Code Ann. § 68-2-609 (3) The closure of any public establishment, facility or building, if the county health officer is otherwise authorized by law to take that action.

Number of documents responsive to this request?

Zero. Zilch. Nada. None. 

Except one document. Only the directive itself — Directive No. 1.

The document the department generated is its authority.

Coppinger outside of Title 68, TN health law

One may ask what powers are officials using if not lawful compulsive powers in the Tennessee code? 

If you have the power to quarantine people, if you have the authority to order them to appear for trial under a warrant for being sick and not self-isolating, why not use that law? Why not use the actual law that gives you a legal lawful power upon individuals?

Probably because using emergency power is easier and doesn’t have as many moving parts. One does not have to identify people individually as being sick and uncooperative. A state actor does not have to aim one’s sites and target one’s power.

The local health department doesn’t have to try to deploy its staff among tens of thousands of citizens and members of the public whom staff don’t know. It doesn’t have to have any personal knowledge of any family situations. It doesn’t have to have personal intelligence about sick people. It doesn’t have to investigate individual cases. It doesn’t have to go to before a judge and swear out a warrant for a sick person who is not cooperating.

To evoke the health law requires evoking of the protective-of-citizen-rights protocols — the right to notice and hearing. Too cumbersome. Too time consuming.

We live in a police state and a surveillance state already. Yet somehow the actual process of application of law against a non-cooperative person is ignored as if it were a power inaccessible.

Mask dehumanizes, zombifies

The constitution says the people are free and that they are bound under the notice and claim of the state only if they are criminal, commit a tort or are subject to the state under a state privilege. These are the three circumstances in which the state has authority over the private person.

“The mask,” says Irishman John Waters, “is a way of denying the very human face of the person,” and causing everyone to look at each other “as a festering mess of bacteria and viruses” that’s dangerous to their health. The aim, he says, is to “destroy the spirit of the human person, the individuality, the personality, the conscience, the character of the human person.” This tyranny of the mask is also happening in Hamilton County and Chattanooga. 

We all need to see the mask-querade for what it really is — an abuse against justice, says Twila Brase of Citizens’ Council for Health Freedom.

The emperor has no clothes. Mayor Coppinger is in the buff. Dr. Hendricks is in his Fruit-of-the-Looms, and the elastic is bad and the hem is slipping under his buttocks.

It’s time we take a stick to them.

The Tulis Report is 1 p.m. weekdays, live and lococentric.

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