Jul 292020
 

letter to the editor

 

[Note from the Editor: Mr. Hardwick shared the following letter he sent to County Judge Peary S. Fowler. Hardwick says he spends a great deal of time outdoors and wears a mask except when he is either eating, drinking, or smoking. He states that he was at a great distance from others and had removed his mask while smoking and that an officer issued him a $250 citation for a violation of the new mask law. Along with challenging the overall constitutionality of the law, Hardwick states that the new Key West mask law (requiring masks at all times when outside one’s residence with some exceptions such as while eating at a restaurant) is being used to target and harass those perceived to be homeless.  Now, it is common knowledge that the City allows tourists to openly drink in public places while members of the local homeless population are often sent off to jail for the same offense. In their defense officials claim the homeless know the law and tourists don’t – so tourists get a warning while the homeless often get cuffed. But we’ve seen with our own eyes and have even captured video of KWPD officers on Duval Street surrounded by tourists with drinks in hand and in those instances not a word was uttered by those officers to the offending tourists – they received no warning.   We don’t have the answer as to whether there is a disproportionate number of homeless (or perceived homeless) receiving citations for violating the mask law while tourists are left alone, but after reading Mr. Hardwick’s letter we will to try to find out. If you have any thoughts about the new Key West mask law and its enforcement please share in the comments section below.]

 

To:
Honorable Judge Peary S. Fowler
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040

Dear Judge Fowler:

I received Ticket Number 1655 on July 19, 2020 for allegedly not wearing a mask. It provides 10 days to pay the ticket and has a court appearance date of September 16, 2020 at 10:30 a.m.

I consider it unlikely that any court hearings will be held on that date and as I have no ability or interest in paying this ticket – for all the reasons stated below – I would like to use this letter as my appearance to provide the following information.

1.      I enter a plea of Not Guilty.
2.      I am legally indigent.
3.      I request the appointment of counsel.
4.      I demand a jury trial.

I also state that the underlying Key West ordinance Directive 2020-13 is unconstitutional on its face and especially regarding this ticket is unconstitutional as applied and evidences gross inequality.

I constantly wear a mask while out on the streets of Key West with a few exceptions. These exceptions are when I am smoking, eating or drinking.

The sole exception in the ordinance is while seated in a restaurant eating or drinking. In light of the fact that taverns are selling alcohol to go and restaurants are selling meals largely on a take-out basis as well as beverages, together with many other businesses selling beverages that are only for take-out, it is obvious that large numbers of people must remove their masks to eat and drink while outside of their homes, especially in downtown Key West. This applies to local residents, tourists and certainly the homeless.

This ordinance seems to be based upon stupidity exceeded only by arrogance and conceit. This ordinance is a grossly inequitable ordinance that is clearly unconstitutional on its face and doubly unconstitutional as applied, in a wide range of circumstances.

In addition, a significant number of people smoke. I had pulled down my mask to smoke when given my ticket, while it remained on my face.  There was no other person within 50 feet of me before the police officers arrived. This renders the ordinance discriminatory against smokers and is thus unconstitutional as applied.

The primary reason I was targeted is because I was perceived to be homeless because I was on the sidewalk about 216 Elizabeth Street.  Thus, the ordinance is further unconstitutional as applied to homeless people and smokers with its enforcement being arbitrary and capricious.

In fact, the day I got my ticket, another homeless person was issued 4 tickets in one day for not wearing a mask. It should be easy for the police to simply hand out masks in such a situation if this ordinance was truly about the pandemic and public health rather than writing 4 tickets. I suppose the cops have to look like they are doing their job, but this ordinance is just another pretext for law enforcement to target, harass, debase and otherwise violate the constitutional rights of the homeless.

It is also clear that these tickets will never be paid and equally clear that many homeless people will not appear and will be arrested when the law is clear that a person cannot be jailed for non-payment of a fine if they are unable to pay the fine. Thus, the city and police department well knows that the underlying purpose of these tickets is to illegally rid Key West of homeless people through a persistent and long established pattern of harassments.

At the same time, at least 50 percent of the people walking up and down Duval Street at any one moment are not properly wearing facemasks, though they are in possession of masks. I bet that the issuance of tickets there is much reduced from what it could be as obviously the city and its powers that be would not want to anger large numbers of tourists who will write Yelp reviews and so forth, helping to turn this tourist trap into a permanent ghost town.

Of course, tourists walking down Duval Street are nicely asked to put on their masks, with very few is any getting tickets. On the other hand, the police have no trouble giving tickets to locals whose lives and livelihoods, have been destroyed by our incompetent political leaders.

A week after I got the ticket, another police officer threatened to write me a ticket for pulling down my mask to smoke. A taxi driver I know was ticketed for not wearing a mask in his cab when no passenger was present. This is a police department out of control, allowed to roam wild based on a poorly written ordinance by incompetents.

Police officers are also continuing to discriminate against the homeless by – for example — asking me to dump out my beer and even throw away my food, all the while ignoring the fact that everyone is drinking and eating on the street.

This is ironic after the powers that be wasted and squandered 3-4 months of lockdown, destroying the economy of this town and county and putting countless people out of work, destroying many businesses and undoubtedly creating many more local homeless people. Now, following this gross incompetence at all levels of government, you go way overboard with a stupidly written and unconstitutional ordinance to make it appear that you have some clue and that you are doing something.

Speaking of wearing masks, it reminds me that I am constantly amazed that the police officers charged with enforcing the law seem to think that they are immune from those very laws.

Apparently, being perceived homeless and not wearing a mask is now a major offense requiring two separate police cars and officers to be dispatched. Two officers, one male and one female exited their cars and approached me WITHOUT wearing any masks. They were certainly within 3 feet to take my identification, asked my social security number and to sign the ticket.

How ironic and absurd is it for police officers to be writing tickets for people not wearing masks when they themselves are not wearing masks? Seriously folks, who are the imbeciles making these decisions? They risk their own health, the public health and the health of everyone they come in contact with, to say nothing of creating a horrible public perception of the incompetence of the Key West Police Department.

They did one thing, they let me keep the pen that I was given to sign the ticket. Apparently they are worried about skin contact transfer more than the fact that COVID-19 is an airborne disease.

Additionally ironic is that I offered to give the officers free KN95 masks as the company I am associated with has a large number available in Key West. They said they had plenty of masks but did not say why they were not wearing them, especially in close contact with me while writing me a ticket. We have given free masks to KWPD officers, the fire department, the Sheriff’s Office and individual officers, the hospital and nursing home, bus drivers and postal employees. They were offered months ago at very low pricing to the county and Florida Department of Health, without so much as the courtesy of a reply.

Thus, is it jumping to conclusions to postulate that the primary purpose of writing tickets has nothing to do with public health and safety but instead is in part, nothing but a further weapon to use against the homeless while attempting to generate revenue, in addition to being a public relations stunt?

Again, the ordinance is unconstitutional as applied but is further unconstitutional because it is unconstitutionally vague providing police officers with unlimited discretion and allows them unbounded abuses of discretion and allows them to engage in arbitrary and capricious enforcement abuses of power.

Additionally, issuing tickets with $250 fines without warning is excessive and extreme; especially in light of Miami – being a hot spot for example – has $100 fines for the first offense. Clearly, revenue generation is more important than public health to the officials of this city who have well paying cushy jobs sitting on their butts with great benefits while thousands in the Florida Keys and tens of millions nationwide are unemployed.

This ticket is the final straw in a chain of events that targeted me, as I am perceived to be homeless. I point out that I never am out of control, I never cause trouble and I am always polite. Apparently all homeless people are considered targets by the KWPD regardless of their conduct.

While walking through Bayview Park I was stopped by a police officer with no reasonable suspicion that I had committed any crime and asked for identification. At the time I only had an identification card from my home state of Ohio, which was expired. It was the only identification I had. The police officer confiscated my identification on the pretense it was expired.

I can find no statutory or case law authority for this apparently illegal conduct. Perhaps there is a basis for confiscating expired identification issued by the State of Florida, but I have found none for that pretense either. Certainly, Key West police officers have absolutely no standing or authority to confiscate out of state identification, much less without cause or any due process.

I am sure the other states could care less about expired ID cards, which is also evidenced by the fact that KWPD officers do not turn these cards into the department (well known by internal affairs) and I would bet a public records request would demonstrate they are never sent back to the issuing states either.

Apparently this is the policy of KWPD as officers have been found to have dozens of identification cards belonging to people from all over the nation in their personal possession, sometimes found in the trash along with discarded dangerous weapons and live ammunition outside their homes.

I would also think this is counter-productive to the KWPD and city goal of getting rid of homeless people because one must have identification to purchase a bus ticket.

The other significant incident was a daytime bicycle officer approaching me while sitting on a wall on public property, and without any warning, grabbing my new and expensive backpack and throwing it into a puddle in the middle of the street. This broke the case with power switch and destroyed the hard drive of a Samsung net-book computer that had been borrowed to me by the business I am associated with.

I am sick and tired of being perceived as homeless because I enjoy taking long walks — sometimes sit down on public property — and talking to homeless people as a pretense for violating my civil rights.

This letter should serve as notice that any further instances of harassment in any form will be properly and legally construed as unconstitutional retaliation for the exercise of my constitutional rights.

I am sure there would be a long line of class action attorneys ready to name you all as defendants. You are put on notice.

Robert L. Hardwick

Cc:

Dennis Ward, State Attorney
Teri Johnston, Key West Mayor
Gregory W. Veliz, City Manager
Heather Carruthers, County Mayor
Sean T. Brandenburg, KWPD Chief of Police
Key West Citizen
The Blue Paper

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 July 29, 2020  Posted by at 3:28 pm * Featured Story *  Add comments

  One Response to “IS THE NEW COVID-19 MASK ORDINANCE BEING USED TO HARASS THE HOMELESS? This man says it is…”

  1. I agree with virtually everything Mr. Hardwick wrote. The City of Key West and the Key West Police Department are both well known for antipathy toward anyone they perceive as homeless, or anyone else they perceive as “undesirable.” They are both well known for taking illegal and unconstitutional actions to harass those people. The family of Charles Eimers can attest to this.

    While the wearing of masks are, and will continue to be, a great help in slowing the viral pandemic that is ravaging our city, our county, and most of the rest of the world, there are much better ways that government can encourage this behavior. Having government employees that are out in public, like police officers, show a good example by wearing masks would be a good start. Procuring and distributing, at no charge, Key West – themed masks would be another way. Conch Republic flag masks for everyone! Paying for a local advertising campaign saying that wearing masks is “cool” would be yet one more. Businesses and the Tourist Development Council could help in similar ways. I am sure the very creative and vibrant Key West community can think of even more ways to encourage mask – wearing.

    And while we are on the subject of abusive and likely unconstitutional laws that are used to harass those perceived as homeless or otherwise “undesirable,” let’s talk about the ordinance against drinking in public. This practice does not hurt anyone. It does not violate anyone’s rights. If the concern is bad behavior that may sometimes accompany over-indulging, there are plenty of other laws to address that. A more sensible approach might be to require plastic or aluminum containers, in order to reduce the legitimate scourge of broken glass. As far as the line that locals know the law, and tourists don’t. That is hogwash! Bars, restaurants, etc have signs proclaiming the law, and all local servers know the law, and can inform tourists. Tourists who catch illegal fish and lobster are not exempt from knowing the local laws. And there is always that famous legal saying that “ignorance of the law is no excuse.” Besides, ridiculous laws against drinking in public have long existed in most places in the US, and many other places, as well.

    That is, until recently. Due to the pandemic, many jurisdictions in the US have begun allowing the consumption of alcoholic beverages in public, to reduce the virus – spreading congestion in bars and restaurants. There have been no ill effects. The sky has not fallen. And this is but one example of laws that have been relaxed, suspended, or eliminated due to the pandemic. Again, with no ill effects.

    So c’mon Key West, get real. Everyone sees through your anti – homeless denials. Get rid of the mask law, and focus on more effective, and less abusive, means to encourage compliance. Those like Mr. Hardwick who spend a great deal of time outdoors are almost certainly much less of a contagion risk than those who spend time indoors, in hotels, bars, restaurants, tourist attractions, grocery stores, offices, and other businesses.

    And while you are getting rid of bad laws, get rid of the “no drinking in public” law, too!

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