Cuomo signs executive order backing businesses that bar customers without masks

The New York governor's move is a first and comes after a spate of incidents involving defiant patrons.

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By Corky Siemaszko

New York Gov. Andrew Cuomo threw his weight Thursday behind businesses eager to stop the spread of the coronavirus by signing an executive order authorizing them to deny entry to any customer who doesn't wear a mask or other face covering.

The governor's move comes in the wake of several well-publicized confrontations between companies that require face coverings and customers who have refused to follow orders.

"That store owner has a right to protect himself," Cuomo said at his daily coronavirus briefing. "That store owner has a right to protect the other patrons in that store.

"You don't want to wear a mask, fine, but you don't have a right to go into that store if that store owner doesn't want you to," he added.

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Cuomo, whose coronavirus briefings have attracted a national audience and who has been praised for his aggressive response to a pandemic — which, as of Thursday, had killed 23,282 people in New York, the most in the nation — appears to be the first governor to have made such a move.

"We also are not aware of any other governor to have taken a similar action," said James Nash, a spokesman for the National Governors Association.

It wasn't immediately clear what kind of sanctions a violator would face, because Cuomo's executive order hadn't been posted on the official website. And there was no immediate response from his spokeswoman.

Meryl J. Chertoff, who heads the Georgetown Project on State and Local Government Policy and Law, said the executive order appears to be a substitute for a Health Department law under which violators can be fined up to $2,000 for a first offense.

"But some EOs contain their own statement of what the sanction is, so without seeing the order I cannot be sure," Chertoff said in an email. "Alternatively, he could mean for the EO to insulate a store owner from a lawsuit for refusing service."

Greg Biryla, who heads the New York office of the National Federation of Independent Business, said he, too, hadn't yet seen the specific language of Cuomo's executive order.

"The governor's reinforcement that businesses have a right to require that customers wear face masks is a good thing," he said. "As long as we are clear that the businesses have a choice, because some businesses are not equipped or may not be able to turn away customers who don't wear masks."

Cuomo's executive order "also underscores the need for some comprehensive liability protection for small businesses that want to reopen while in the midst of a pandemic," he said.

While some have called the mask requirement an infringement of their constitutional rights, stores have been enforcing "no shoes, no service" and other dress codes for decades, experts said.

"Businesses have a right to refuse entry or service to anyone not wearing a mask," said James Biscone, a workers' compensation lawyer in Oklahoma City.

The executive order means "law enforcement has the legal authority to arrest individuals for failing to adhere to a private business' mask or face covering requirement," Biscone said.

"All signs point to the order giving law enforcement the mechanism they need to make an arrest and to enforce the order," he said. "At the very least, Governor Cuomo's order is a robust gesture of support for businesses that are being pressured to not be so strict about mask-wearing."

But it's unlikely that police officers will be slapping handcuffs on uncooperative customers, unless they get violent, said Raymond Scheppach, a public policy professor at the University of Virginia.

Cuomo's move is more of a directive aimed at getting people "to follow the guidelines" and supporting businesses that want to enforce them.

"No governor wants to get the state police or local police involved in this issue," Scheppach said. "If push comes to shove, I do not think they would want police to hand out citations and fines. I don't think they want to go there."

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There have been numerous confrontations between companies that insist on masks and customers who refuse to wear them. In Flint, Michigan, a Family Dollar store security guard was killed early this month after he kicked a customer out who wasn't wearing a mask.

More recently, a Costco manager was lauded online for keeping his cool while a customer who refused to wear a mask recorded himself berating the worker.

"That's new to me," Richard Galanti, an executive vice president of Costco, said when notified by NBC News of Cuomo's executive order.

Galanti declined to comment directly on the order, but he said: "I respect what he and the other governors have been doing. I give them a lot of credit for leading us through this.

"We instituted the mask requirement on May 4 because we felt it was the right thing to do," he added. "If we're right, we've helped stop the spread of the coronavirus. If we're wrong, it's a small inconvenience."