Filing # 111794803 E-Filed 08/14/2020 10:02:03 AM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL

CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION

KEVIN LEVONAS and ANGELINA AUCELLO

MATT and PRISCILLA POAGE
JUSTIN and GRACE WARNIMENT
ELIZABETH HAGAN CASE #
MIKE MILLER
ROBERT and EVELYN GRIFFITH

et al
Plaintiffs/Petitioners,
v.

HILLSBOROUGH COUNTY SCHOOL BOARD, FLORIDA, and

SUPERINTENDENT ADDISON DAVIS
Defendant/Respondent.
____________________________________/

CONSOLIDATED VERIFIED PLAINTIFFS’ EMERGENCY COMPLAINT FOR

DECLARATORY RELIEF AND INJUNCTIVE RELIEF
WITH INCORPORATED MOTION FOR TEMPORARY RESTRAINING ORDER
AND MEMORANDUM OF LAW

Plaintiffs, in the cases captioned above, by and through their undersigned attorney, and

pursuant to Florida Statute § 26.012 (3), (2019) and to Rule 1.610, Fla.R.Civ.P., respectfully move

this Court for the entry of a Temporary Restraining Order or, in the alternative, move for a Preliminary

Injunction enjoining Defendants, HILLSBOROUGH COUNTY SCHOOL BOARD, FLORIDA, and

the SUPERINDENDENT of HILLSBOROUGH COUNTY SCHOOLS from compelling Students to

wear facemasks as a requirement to attend school. Attached hereto are Affidavits of Verification

supporting the request for extraordinary relief articulated herein, which also incorporate the

Complaint in this action as a verified basis for the relief requested. Because a violation of Florida

Sunshine Act is alleged in accordance with ARTICE I, § 24(B), immediate handling of this complaint

is required pursuant to Florida Statute § 119.11(a). In support of the relief requested herein, would

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 show the following:

I. INTRODUCTION TO THE COMPLAINT

Today, education is perhaps the most important function of state and local governments.
Compulsory school attendance laws and the great expenditures for education both
demonstrate our recognition of the importance of education to our democratic society. It is
required in the performance of our most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. Today it is a principal
instrument in awakening the child to cultural values, in preparing him for later professional
training, and in helping him to adjust normally to his environment. In these days, it is
doubtful that any child may reasonably be expected to succeed in life if he is denied the
opportunity of an education. Such an opportunity, where the state has undertaken to provide
it, is a right which must be made available to all on equal terms.

Brown v. Board of Education of Topeka, 347 U.S. 483, at 493 (1954).

1. The intent of this lawsuit is to empower parents, whose love for their children cannot

be questioned, and have the sole right to make decisions in their children’s best interest. As of this

writing, there is not one single instance, anywhere in the entire world, where one single school teacher

has contracted COVID 19 from a student. Zero cases. Anywhere on planet earth. This lawsuit seeks

to protect children from an irrational policy that proposes to protect them, but has the actual effect of

actually harming children1. The irrational policy proposed by the Superintendent of the Hillsborough

County School Board (hereinafter referred to as “HCSB”), in violation of the Florida Sunshine Act,

is a hidden effort to impose a heavy burden on students and parents alike for exercising their rights

afforded to them under the Florida Constitution, thereby making it virtually impossible to enjoy those

rights.

2. The HCSB has placed parents in a position to subject their children to real harm totally

unrelated to COVID 19, both physical and psychological, if they choose to send them to school, as

1
As of this writing, and according to the American Academy of Pediatrics, the following statistics concerning COVID
19 are published: Out of a children population of 77.9 million, the overall rate of COVID 19 in children is 447 cases
per 100,000 children in the population To date, there has been only 3 deaths involving Children in the State of
Florida. Nationally, influenza in children has killed over twice as many as COVID 19. 166 children under 14 have
died from Influenza this year, (as compared to 188 the year before throughout the United States).
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 would be their right to do so under the Florida Constitution. The policy of mandatory facemask wear

for students of tender years leaves parents with little choice: subject their children to a policy that is

not in the best interest of the child, or to be compelled to home school their children in a manner that

is both separate and unequal. Most parents cannot make such a choice, given their own work

requirements. This “Sofie Choice” is being foisted upon the citizens of Hillsborough County in an

irrational way, in violation of the Florida Constitution.

3. The Florida Constitution requires the state to offer its citizens a free public education

for its children. As such, any regulation that would interfere with the delivery of a free public

education must be based on a compelling interest, be narrowly tailored to meet that interest, and pass

strict judicial scrutiny. A free public education is a fundamental right, protected by the Florida

Constitution, and any such policy that interferes with this right must survive the highest judicial

scrutiny.

4. However, the HCSB has instituted a policy of required face mask wear for students in

order to attend school that serves no legitimate or rational purpose when actually analyzed through

the prism of the actual science with respect to COVID 19 and the harm to the students that will be

incurred if such a policy of required long term face mask wear is implemented. In fact, it is a policy

instituted not based on reliable data or science, but on irrational fear. Such policy is not in a minor

child’s best interest, but actually serves to harm a child’s well-being.

5. The HCSB contemplates requiring children, as young as five (5) years of age, to wear

facemasks, up to 7 hours a day, five days a week, in spite of no scientific evidence whatsoever to

support that these same individuals are susceptible of spreading the COVID 19 pandemic.2

2
A study by the Netherlands’ National Institute for Health (RIVM) published on Wednesday, July 15, 2020, concluded
that children under the age of 12 play little role in transmitting the new coronavirus. The study in the country’s leading
medical journal Nederlands Tijdschrift Voor Geneeskunde followed the progress of the disease in 54 families, including
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 6. Further, the imposition of face mask wearing for minor children does not serve a

rational purpose because the policy does not, and cannot, meet the policy objectives proposed by this

policy (e.g. to stop the spread of COVID 19).3 One need only to look to the 57 nations that comprise

the European Union to see that this policy is utterly irrational where schools are open and in session,

and without any requirements to wear a face mask as are being proposed by the HCSB.4

7. In short, it is not the adults in the room that need protection from the children, rather,

it is the children that need protection from the adults, who should be the one’s wearing the masks that

protect people from a source carrier.5 To that end, the facemask that are to be worn under this policy

by the students offer absolutely no protection whatsoever to the students.6 That is the definition of a

227 people in all. Studies in other countries have previously found that children are less often infected by the virus and,
once infected, less often become seriously ill.
3
Arnaud Fontanet, an epidemiologist at the Pasteur Institute, and his colleagues started an investigation in Crépy-en-
Valois in late March to see whether they could piece together the virus’ reach in the town and its schools. In six
elementary schools, they found a total of three children who had caught the virus, likely from family members, and then
attended school while infected. But, as far as the researchers could tell, those younger children didn’t pass the virus on
to any close contacts. “It’s still a bit speculative,” says Fontanet, who shared results from the high school on 23 April
and from the elementary schools on 29 June, both on the preprint server medRxiv. Children younger than 11 or 12, on
the other hand, “probably don’t transmit very well. They are close to each other in schools, but that is not enough” to
fuel spread.
4
In some schools in Germany, students wear them in hallways or bathrooms, but can remove them when seated at their
(distantly spaced) desks. Austria reopened with this approach, but abandoned masks for students a few weeks later,
when officials observed little spread within schools. In Canada, Denmark, Norway, the United Kingdom, and Sweden,
mask wearing was optional for both students and staff.
5
The CDC reports as of 8 August 2020, that “[m]ost reported cases of coronavirus disease 2019 (COVID-19) in
children aged <18 years appear to be asymptomatic or mild.” Since March 1, 2020, COVID-NET has identified 576
pediatric COVID-19–associated hospitalizations. 42 percent of that number had one or more underlying conditions.
The total deaths for children <18 for COVID 19 are approximately 78.
6
Centers for Disease Control and Prevention (CDC) guidance states that standard N95 respirators reduce the wearer's
exposure by filtering out around 95 percent of air particles, while those with exhalation valves allow “unfiltered exhaled
air to escape into the sterile field." Dr. Matthew L. Springer, a cardiologist at the University of California, San
Francisco, told the San Francisco Chronicle that masks with these values are “practically useless.” “Given that most of
the value of these masks is not to protect the wearer but to protect others from a potentially contagious asymptomatic
wearer, those one-way valves make the masks practically useless for protecting others,” he said. “So all those
potentially contagious people are spewing unfettered large respiratory droplets, probably even in a concentrated stream
going through the valves.”

In addition, most masks only protect as a form of source control. Masks may be more effective as a “source control”
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 policy that fails a rational basis test, let alone strict scrutiny.

8. In addition, when a policy is instituted that requires minors to wear masks, as is being

done here, it meets the definition of a medical device.7 Such wearing of a device interferes with the

parents right to choose the medical decision and treatments for their minor children. In short, the

HCSB does not have the legal authority to order a medical device be worn, over a long period of time,

five days a week, for the privilege of enjoying a free public education, as defined by the Florida

Constitution. Such medical devices do not meet the pre-conditions of requiring certain inoculations

to attend school, nor are they a proper definition of school clothing that schools may regulate.

9. At its heart, therefore, this case seeks to protect and vindicate fundamental liberties

that citizens of the United States enjoy free from government interference. In the instant case,

Plaintiffs are Florida and Hillsborough County citizens and parents of young children whose liberties

protected by both the Florida and United States Constitutions have been denied through the arbitrary

application of a Facemask rule for their children issued under a declared State of Emergency.

10. The liberties protected by the Constitution are not conferred or granted by government

to then be rescinded at the will and whims of government officials. These God-given liberties are

possessed by the people, and they are guaranteed against government interference by the United

States and Florida Constitution, which are the supreme law of the land.

because they can prevent larger expelled droplets from evaporating into smaller droplets that can travel farther.
Because minors are far less likely to contract COVID 19, and are less likely to spread the virus to others, masks as a
form of “source” control loess their efficacy with respect to minor children.
7
According to the United States Food and Drug Agency, a face mask is a device, with or without a face shield, that
covers the user’s nose and mouth and may or may not meet fluid barrier or filtration efficiency levels. It includes cloth
face coverings as a subset. It may be for single or multiple uses, and if for multiple uses it may be laundered or cleaned.
There are many products marketed in the United States as “face masks” that offer a range of protection against potential
health hazards. Face masks are regulated by FDA when they meet the definition of a “device” under section 201(h) of
the Act. Generally, face masks fall within this definition when they are intended for a medical purpose. Face masks are
regulated under 21 CFR 878.4040 as Class I 510(k)-exempt devices (non-surgical masks).
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 11. Any government that has made the grave decision to suspend the liberties of a free

people during a health emergency should welcome the opportunity to demonstrate-both to its citizens

and to the courts-that its chosen measures are absolutely necessary to combat a threat of

overwhelming severity.

12. The government should also be expected to demonstrate that less restrictive measures

cannot adequately address the threat. Whether it is strict scrutiny or some other rigorous form of

review, courts must identify and apply a legal standard by which to judge the constitutional validity

of the government's anti-virus actions.

13. Governments wield the highest state power when confronting a health crisis. But

ample police powers to administer health, safety, and welfare matters do not obviate state and local

officials’ grave duty to safeguard civil liberties. The “Flatten the Curve” campaign to avoid hospital

overload was within state powers as a legitimate and attainable regime.

14. However, any legitimate action that infringes upon civil liberties must closely target

the root of crisis. Executive orders by the Superintendent of the School Board, not supported by

legislative vote by the elected members of the board, and that interfere with a child’s right to a free

public education, must be clearly defined, narrowly tailored, attain a compelling interest, and not

violate equal protection under Florida Law. None of these elements are met in this case.

II. A SUMMARY OF THE REASONS FOR

EMERGENCY AND EXTRAORDINARY RELIEF

15. The Florida Constitution holds at Article IX the following:

a) The education of children is a fundamental value of the people of the State of

Florida. It is, therefore, a paramount duty of the state to make adequate provision for
the education of all children residing within its borders. Adequate provision shall be
made by law for a uniform, efficient, safe, secure, and high quality system of free
public schools that allows students to obtain a high quality education and for the
establishment, maintenance, and operation of institutions of higher learning and other
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 public education programs that the needs of the people may require.

16. As is patently clear, the continued closures of school’s risk “scarring the life chances

of a generation of young people,” as stated by an open letter published last month and signed by more

than 1500 members of the United Kingdom’s Royal College of Pediatrics and Child Health. The

alternative being offered to forcing a child of tender years to wear a mask five days a week, 7 hours

a day, is home schooling.

17 Virtual education is often a pale shadow of the real thing and left many parents

juggling jobs and childcare. In short, a virtual education is inconsistent with the Florida Constitution.

Lower-income children who depend on school meals will go hungry. And yet, the policy of the

HCSB compels parents to choose between sending their minor children to school in a manner that is

not in their best interest, versus having to go through virtual education that is insufficient. Such

virtual education expects a child of tender years to sit in front of a computer screen for 6 hours a day,

monitored by their parent. What working parent is capable of doing that, and what child will sit still

in front a computer screen hour after hour, day after day. There are innumerable studies that show

that extended screen time as proposed by HCSB is ultimately harmful to the child and is not in a child

best interest.

18. Early data from a landmark National Institutes of Health (NIH) study that began in

2018 indicates that children who spent more than two hours a day on screen-time activities scored

lower on language and thinking tests, and some children with more than seven hours a day of screen

time experienced thinning of the brain’s cortex, the area of the brain related to critical thinking and

reasoning.

19. But this is exactly what the HCSB is proposing to do to students who refuse to comply

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 with the Board’s mask rule. Such screen time is not only unhealthy and bad for a child’s eye’s8, brain

development,9 and has a deleterious effect on a child’s mental and physical growth.10 Expecting a

child to wear a mask 7 hours a day, or sit in front a computer for an equal period of time, requiring a

parent to monitor the child at the expense of their own jobs, is a Hobbesian choice11 indeed.

20. From the studies listed above we can determine the following without any dispute:

• Children appear significantly less likely to acquire COVID-19 than adults when
exposed;

• There is reasonable evidence that there are significantly fewer children infected in
the community than adults;

• Children are rarely the index case in a household cluster in the literature to date;
and

• It is not clear how likely an infected child is to pass on the infection compared to an
infected adult, but there is no evidence that they are any more infectious.

8
A new study appearing in Ophthalmology, the journal of the American Academy of Ophthalmology, offers further
evidence that at least part of the worldwide increase in nearsightedness has to do with near work activities; not just
screens but also traditional books. And, that spending time outdoors—especially in early childhood—can slow the
progression of nearsightedness.
9
A new study from Cincinnati Children’s Hospital Medical Center published in JAMA Pediatrics showed concerning
evidence that brain structure may be altered in kids with more screen use. Researchers looked at brain MRIs in 47
preschoolers and found that screen time over the AAP's recommendations was associated with differences in brain
structure in areas related to language and literacy development.

According to David Anderson, Ph.D., a clinical psychologist and senior director of National Programs and Outreach at
the Child Mind Institute, it’s especially important “to be very cautious when using screens with young kids, as this
study highlights, as young kids are in a critical developmental period." At this stage, children "require face-to-face
interaction," said Anderson to reach developmental milestones including building language and social skills. During
this time they also develop empathy, the ability to understand emotion, and "build stamina to navigate personal
situations," he said.
10
Dr. Jennifer F. Cross, attending pediatrician and a developmental and behavioral pediatrics expert at NewYork-
Presbyterian Komansky Children’s Hospital. “If young children spend most of their time engaging with an iPad,
smartphone, or the television, all of which are highly entertaining, it can be hard to get them engaged in non-electronic
activities, such as playing with toys to foster imagination and creativity, exploring outdoors, and playing with other
children to develop appropriate social skills. Interacting almost exclusively with screens would be like working out only
your arm muscles and nothing else. You would have really strong arm muscles, but at the expense of overall fitness.”
11
A Hobson's choice is a free choice in which only one thing is offered. Because a person may refuse to accept what is
offered, the two options are taking it or taking nothing. In other words, one may "take it or leave it".
8

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 The most parsimonious explanation for all the above seems to be that children are less susceptible to

becoming infected, therefore fewer of them have become infected, and children have therefore

infrequently brought the infection into their homes.

21. FIRST: It is a violation of the Florida Constitution to fail to offer children a free

public education. Imposing a requirement to receive that education that serves no rational basis

violates this requirement.

22. SECOND: In addition, offering as an alternative a virtual education regimen that

forces a parent to stay with the minor is an inadequate alternative that violates Article IX of the Florida

Constitution. A virtual classroom is not the classroom, and children subject to a virtual education

are receiving a separate and unequal education. See Brown v. Board of Education, 347 U.S. 483

(1954).

23. THIRD: In addition, requiring students to wear face masks as a medical device,

interferes with a parent right to determine medical treatments for their child. Parents have a legal

right to make treatment decisions on behalf of their young children. Such rights are normally

rebuttable: they can be set aside by courts where parents’ decisions pose a significant risk to the life

or well-being of the child. However, in all cases, such arrangements create a presumption in favor

of parental rights in the absence of an existing and existential threat to the life of child. In all cases

involving these judgments with regards to medical treatment of children, family autonomy is not

absolute, but may only be limited where it appears that parental decisions will jeopardize the health

or safety of a child through the exercise of a specific court order based on a specified determination

involving a specific minor that such evidence exists. Given the facts as presented by science that

COVID 19 presents a far reduced risk to the health of minors then, for example, the flu, it calls into

the question the rational and authority that the HCSB has to interfere with parental authority in these
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 matters.

24. FOURTH: The HCSB policy also violates numerous other provisions within the

Florida Constitution. Chief among those rights and liberties are those found in Article 1 of the Florida

Constitution.12 The HCSB policy as applied violated equal protection as found within the Florida

Constitution, Article I, § 2.

25. FIFTH: The Superintendent of the Hillsborough County Schools is not a dictator,

where he may pass policy by fiat. This is official is subject to Florida Laws concerning government

being conducted in the Sunshine. The process by which the adoption of this facemask policy by the

HCSB, violated multiple Florida Statutes. Article I, § 24(b) of the Florida Constitution requires all

meetings of public entities to be in public and noticed. This policy was placed into effect with no

notice, hearing or publication of the law as of July 7, 2020. The HCSB may suggest that that the

requirement of Florida Statute § 286.0115(3) provides an exemption from public notice and

participation in the case of emergency. However, the nature of how this facemask policy was

adopted, without any public comment or open hearing, and not scheduled to into effect until late

August, shows that the need for such actions that avoid Florida Constitutional requirements did not

12
Article 1, Sections 2, 9, 21 and 23 the Florida Constitution provides, in pertinent part:

a. SECTION 2. Basic rights. —All-natural persons, female and male alike, are equal before the law and
have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be
rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of
race, religion, national origin, or physical disability.

b. SECTION 9. Due process. —No person shall be deprived of life, liberty or property without due process
of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against
oneself.
c. SECTION 21. Access to courts. —The courts shall be open to every person for redress of any injury, and
justice shall be administered without sale, denial or delay.

d. SECTION 23. Right of privacy. —Every natural person has the right to be let alone and free from
governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be
construed to limit the public’s right of access to public records and meetings as provided by law.

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 constitute an emergency in any sense of the word.

SIXTH: The HCSB has threatened to close down public schools for a week in violation of

Article IX and Article I, section 2 (equal protection), and will impose a separate and unequal

education of the students of Hillsborough county for the first week of school.

III. STANDARD OF REVIEW

27. Because this is an action being brought under Florida Statute §119.11, an accelerated

hearing and immediate compliance are required. Florida Statute § 119.11(1) states in part: (1)

Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate

hearing, giving the case priority over other pending cases.

28. Because a specific constitutional right is being violated by the BCSB, the standard of

review is Strict Scrutiny. The HCSB facemask policy must have a compelling interest, and be

narrowly tailored. For the aforementioned reasons state infra, the BCSB fails even a rational basis

test.

IV. JURISDICTION AND VENUE

29. The Plaintiffs in this action are a number of individuals who reside in Hillsborough

County who have minor children who attended Hillsborough County Public Schools who are

impacted by the order of the HCSB, and whose civil liberties and constitutional rights are being

violated.

30. This is an action for declaratory and injunctive relief, that also seeks a TRO, and this

action is related to the separate actions specified herein.

31. This in an action challenging the constitutionality of the facemask policy instituted

against the Plaintiffs by the HCSB.

32. This is an action for temporary and permanent injunctive relief and for a declaratory
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 judgment and related relief. The jurisdiction of this Court is invoked pursuant to Chapter 86 et.seq.

Florida Statutes, which authorizes circuit courts to enter declaratory judgments related to

controversies within the jurisdiction of the circuit court. The jurisdiction of this Court is also invoked

pursuant to Rule 1.610, Fla.R.Civ.Pro., Chapter 26.012(3), Florida Statutes, which authorizes the

circuit courts to enter injunctions, and the inherent power of Florida courts to grant injunctive and

declaratory relief.

33. The jurisdiction of this Court is also invoked pursuant to Article I, § 2, 9, 21, and 23,

and Article IX, of the Constitution of the State of Florida.

34. The jurisdiction of this Court is also invoked pursuant to Smith v. Avino, 91 F.3d 105

(11th Cir. 1996), abrogated on other grounds Steel Co. v. Citizens for Better Env., 523 U.S. 82 (1998)

(noting that government may impose a curfew during times of emergency but they must be imposed

in good faith, have a factual basis, and be necessary to maintain order) and SW v. State, 431 So. 2d

339 (2DCA 1983), “Government has a legitimate right to enact laws for the protection of minors, but

such laws must reasonably relate to their purpose without unduly limiting individual freedoms.”

35. An actual and existing controversy exists between Plaintiffs and Defendant

Superintendent for the Hillsborough County Schools and the Hillsborough County School Board

relative to their respective rights and duties as set forth herein.

36. Venue is proper in Hillsborough County, because Hillsborough County is the County

where the Plaintiffs and Defendants are located, and where relief is sought from the enforcement of

the unconstitutional threat to personal and property rights brought about through enforcement of the

challenged order.

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 V. PARTIES

37. Plaintiffs KEVIN LEVONAS and ANGELINA AUCELLO reside in Hillsborough

County and have two minor children enrolled in Hillsborough County Schools. A.L and L.L.

attend elementary school in Hillsborough County. Both Plaintiff’s contend that their minor children

should be permitted to attend a brick and mortar school, without being compelled to wear a facemask.

38. Plaintiff MATT and PRISCILLA POAGE resides in Hillsborough County, and has one

minor child enrolled in the Hillsborough County Schools. W.F.P. is in elementary school in

Hillsborough County. Both Plaintiff’s contend that their minor children should be permitted to attend

a brick and mortar school, without being compelled to wear a facemask.

39. Plaintiffs JUSTIN and GRACE WARNIMENT resides in Hillsborough County, and

have two minor children enrolled in the Hillsborough County Schools C.P.G. and B.P.G. attend

elementary school in Hillsborough County. Both Plaintiff’s contend that their minor children should

be permitted to attend a brick and mortar school, without being compelled to wear a facemask.

40. Plaintiff ELIZABETH HAGAN resides in Hillsborough County, and has two minor

children enrolled in the Hillsborough County Schools M.N.H. and A.H. are both enrolled in middle

school in Hillsborough County. Plaintiff contend that her minor children should be permitted to

attend a brick and mortar school, without being compelled to wear a facemask. (Left intentionally

blank)

41. Plaintiff MIKE MILLER resides in Hillsborough County, and has one minor child

enrolled in the Hillsborough County Schools. E.R.M. is attending an elementary school in

Hillsborough County. Plaintiff contend that his minor child should be permitted to attend a brick and

mortar school, without being compelled to wear a facemask.

42 Plaintiff ROBERT and EVELYN GRIFFITH reside in Hillsborough County and have
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 two minor children in the Hillsborough County Schools. R.L.G. is in high school. R.G. and E.G.

are students in elementary school. Plaintiffs contend that all of their children should be able to

attend a brick and mortar school without being compelled to wear a facemask.

43. At all times material hereto, Defendant SUPERINTENDENT and the

HILLSBOROUGH COUNTY SCHOOL BOARD, FLORIDA, was and is a political subdivision of

the State of Florida. Naming HILLSBOROUGH COUNTY SCHOOL BOARD, FLORIDA, as a

Defendant in this action is intended to include all HILLSBOROUGH COUNTY PUBLIC

SCHOOLS, FLORIDA representatives, employees, and agents, including but not limited to, the

Hillsborough County School Superintendent and the School Board, all public and public charter

schools, and all employees and agents under whose authority to enact and enforce these policies and

regulations is duly governed and limited by, inter alia, Sec.286, et.seq., Florida Statutes (Florida

"Sunshine" law) and Article I, Section 24, Florida Constitution, as well as the defined authorization

to carry out county government responsibilities under Chapter 125, Florida Statutes, duly governed,

limited and enumerated by, inter alia Sec.125.01, Sec. 125.011, Sec. 125.66 and Sec. 286, et.seq. of

the Florida Statutes (Florida Constitution, effective July 1, 1993).

VI. PLAINTIFFS’ STATEMENT OF JURISDICTIONAL ALLEGATIONS

ESTABLISHING STANDING, RIPENESS AND A RIGHT TO RELIEF

44. Plaintiffs assert that their position, as set forth in this Complaint, is legally sound and

supported by fact and law (see enclosure 1). The Defendants’ threatened actions in the form of an

facemask order for minor children to enjoy a right protected by the Florida Constitution and one

which interferes with other rights and privileges as is shown in this complaint created a bona fide

controversy between the parties, and Plaintiffs are in doubt as to their rights, privileges and

immunities with respect to the HCSB facemask order. Plaintiffs require, therefore, a declaratory

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 judgment determining their rights, privileges and immunities, and relief from unconstitutional and

illegally imposed facemask order of the HCSB

45. Plaintiffs KEVIN LEVONAS and ANGELINA AUCELLO reside in Hillsborough

County and have two minor children enrolled in Hillsborough County Schools. The Plaintiffs believe

that wearing masks for their young children is not in their physical and mental best interest, given

their age. Their emotional intelligence will not allow them to successfully wear a mask for hours at

a time. In addition, the Plaintiffs believe that the mask are unhealthy and risk causing harm to their

children’s health, both physical, mental and emotional.

46. Plaintiff MATT and PRISCILLA POAGE resides in Hillsborough County, and has one

minor child enrolled in the Hillsborough County Schools. In the parent’s view, they believe the

masks are unhealthy and represent a greater danger to their child’s physical and psychological well-

being. But for the mask regulation, the Plaintiffs would desire their minor child to remain in a brick

and mortar schools, where they believed their minor child would receive a better education. They

believe that wearing a mask is actually unhealthy for their child.

47. Plaintiffs JUSTIN and GRACE WARNIMENT resides in Hillsborough County, and

have two minor children enrolled in the Hillsborough County Schools Plaintiffs have one minor

child who is learning impaired and incapable of wearing a mask full time. They fear that this child

will be subject to ridicule, even if given an exemption. In addition, both parents feel strongly that

being compelled to wear a facemask all day five days a week represents a threat to their minor

children’s health and welfare. In addition, the parents believe that this facemask regulation is divisive

and will result in children being persecuted for failing to comply with imposed regulations.

48. Plaintiff ELIZABETH HAGAN resides in Hillsborough County, and has two minor

children enrolled in the Hillsborough County Schools. Plaintiff values her children’s health and
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 believes that wearing masks represents a threat to her minor children’s physical health and emotional

wellbeing. Plaintiff does not want her children to be compelled to wear mask in school because she

feels that wearing a mask provide will not provide proper protection. Additionally, she feels strongly

that wearing a mask is harmful to their health, and will not allow them to be a productive student.

49. Plaintiff MIKE MILLER has one minor child enrolled in the Hillsborough County

Schools. Mr. Miller believes that the HCSB facemask policy presents a health and welfare threat to

his minor child due to improper wear of the mask during the school day. Mr. Miller feels that

compelling his child to wear a facemask will result in his child adjusting the mask in a way that will

lead to increase risk due to a contaminated mask. Plaintiff ROBERT and EVELYN GRIFFITH are

not comfortable with their minor children being compelled to wear a medical device without proper

medical supervision, and outside of the parent’s presence.

50. There is a clear, present, actual, substantial and bona fide justifiable controversy

between the parties. All conditions precedent to the institution and maintenance of this cause of

action have occurred or have been performed.

51. The acts, practices and jurisdiction of the Defendant, HCSB, as set forth herein, were

and are being performed under color of state law and therefore constitute state action within the

meaning of that concept.

52. Plaintiffs are and will be threatened with adverse treatment and a denial of due process

and their civil rights, and compelled to receive separate and unequal education in violation of the

Florida Constitution, on the basis of the facemask order of the HCSB that is hopelessly vague. In

addition, Plaintiffs rights to determine how medical services are delivered to their children are

interfered with in violation of the Florida Constitution. Further, the HCSB facemask order treats

individuals differently based on no recognizable status., thereby violating the Equal Protection
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 Doctrine as found under the Florida Constitution. Finally, this facemask order was implemented in

violation of the Florida Sunshine Act.

53. Plaintiffs have no adequate remedy at law. No amount of money damages could

adequately compensate the Plaintiffs for the irreparable harm described herein, specifically the

deprivation of constitutionally protected fundamental rights.

54. Plaintiffs and the public at large will suffer irreparable injury if injunctive relief is not

granted, and Defendants are permitted to enforce the provisions of the HCSB facemask order.

55. The public interest would best be served by the granting of injunctive relief, and,

indeed, the public interest is disserved by permitting the enforcement of invalid facemask order of

the HCSB and the flawed procedures in violation of Florida Statute’s that resulted in this flawed and

vague order that violates numerous constitutional rights, as set forth herein.

56. The financial and non-financial losses the Plaintiffs have suffered is the direct result

of the discriminatory, irrational, and unequal restrictions from the HCSB facemask order and the

overreaching adoption and enforcement of the order’s challenged herein.

57. Plaintiffs and the public at large will suffer irreparable injury if injunctive relief is not

granted, and if the Respondent is permitted to enforce the provisions of the offending facemask order.

58. Plaintiffs have engaged the undersigned to prosecute this action and vindicate their

rights under the law and Plaintiffs would request an award of attorneys’ fees.

VII. GENERAL ALLEGATIONS

A. DESCRIPTION OF THE HISTORY LEADING TO THE

SUPERINTENDENT REQUIRING
THE WEARING OF PROECTIVE FACE COVERINGS

59. In December 2019, a cluster of pneumonia cases, caused by a newly identified β-

coronavirus, occurred in Wuhan, China. The World Health Organization (WHO) officially named
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 the disease as coronavirus disease 2019 (COVID-19).

60. On February 29, 2020, the United States reports the first death on American soil.

61. On March 1, 2020 the Governor of the State of Florida issued Executive Order

Number 20-51, declaring that a public health emergency exists throughout the State of Florida as a

result of the spread of the COVID-19 virus; and

62. On March 9, 2020 the Governor of the State of Florida issued Executive Order

Number 20-52, declaring that a state of emergency exists throughout the State of Florida as a result

of the spread of the COVID-19 virus and its imminent threat to health and welfare of the citizens of

Florida.

63. WHO declared the outbreak a pandemic on March 11, 2020 Two days later, on March

13, 2020, a US national emergency is declared over the novel coronavirus outbreak.

B. A DESCRIPTION OF HCSO FACE MASK ORDER

64. On July 7, 2020, without a vote of the Hillsborough County School Board, and

without notice or public comment, Superintendent Addison put out the following statement:

At Hillsborough County Public Schools, the safety of our staff and students is always a top
priority. As we face the global challenges brought upon us by COVID-19, we must focus on
the impact of this pandemic within our own community, and most importantly the effects upon
our children. Although we are presented with a myriad of changes and challenges daily, we
can agree that the health and safety of our students, teachers, staff and Hillsborough County
residents are paramount to launching the 2020-2021 academic year.

While much of the COVID pandemic has seemed insurmountable and ever-changing, it is
incumbent upon us to provide optimal health and safety structures for our schools as we traverse
these challenges. To that end, and after much consideration and consultation with health
experts, civic leaders, educators, and Hillsborough County Public Schools stakeholders, I have
made the decision that as we prepare to re-open our schools, face coverings will be a
requirement for all students, teachers, staff, administrators and visitors, where social distancing
cannot be maintained or when an approved exemption does not apply.

The CDC has identified face coverings as one of the most effective tools in stopping the spread
of COVID-19, along with social distancing, hand washing and disinfecting frequently touched
surfaces. With that said, reusable face coverings will be provided for our faculty, staff, and
students, and non-reusable face coverings will be provided to all visitors.
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 It is our goal that as we re-open our schools and welcome our children into a new year of
learning, that we mitigate the health concerns with which we are faced and focus on providing
high-quality instruction and engagement for every student. We will continue to work in
partnership with all stakeholders, as well as with the Florida Department of Health and our
state and local governance, to ensure that we provide a safe, healthy, and successful return to
school for our students.

For your review, I have provided a document of Frequently Asked Questions specific to this
face covering requirement. Thank you for your continuing support of the health and well-being
our students. I appreciate your dedication.

65. Attached to this statement was a series of what is described as “Frequently Asked

Questions on the Use of Face Covering” that propose to explained this announced policy (Enclosure

2). Some of the important highlights include:

a. Face covering will be required to be worn in Hillsborough County Public Schools.

by all students and personnel for the entire day unless eating or drinking, everywhere on

the school campus, even if participating in extracurricular activities, and on school

buses. Since social distancing cannot be achieved in the classrooms, facemasks will

be required to be worn in the classrooms.

b. The policy provides for exemptions, but does not explain how they are to be applied.

For example,, persons for whom a face covering would cause an impairment due to an

existing health condition; persons who need to communicate with someone who is

hearing impaired and needs to see the person’s mouth to communicate; teachers and

students when face covering would be an impediment to instruction; and Appropriate

accommodations will be made based on the individualized needs of the students.

c. Students that refuse to comply with this policy will face disciplinary actions. Such

actions will ultimately result in the Student being required to withdraw from Pubic

School and enroll in distance learning.

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 d. Face Covering are subject to speech and dress codes of the school. Inflammatory

language, not defined, on a face mask, will not be approved.

66. There is no scientific evidence to suggest that those students and individuals who

qualify for an exception for reasons clearly unrelated to Title VII, 42 U.S.C. § 2000d et seq, are

immune from contracting COVID 19. Such exceptions would make the general rule of a face mask

wear for all others fail even a rational basis test, and would violate the Florida Constitutional

requirement of equal protection as found under Article I, § 2.

VIII. COMPLAINT

A. FIRST CLAIM FOR RELIEF

THE FACEMASK ORDER FROM THE SUPERINTENDENT OF THE

HILLSBOROUGH COUNTY SCHOOL BOARD VIOLATES THE FLORIDA
CONSTITUIONAL REQUIREMENT OF
PROVIDING A FREE PUBLIC EDUCTION

67. Plaintiff incorporates herein by reference each and every allegation contained in

paragraphs 1-66 of this Complaint as though fully set forth herein.

68. The Florida Constitution, Article IX states, in part, that the education of children is a

fundamental value of the people of the State of Florida. Because a free public education is guaranteed

in the Florida Constitution, any impediments to receiving that education must have a compelling

interest and be narrowly tailored to meet that interest. Grutter v. Bollinger, 539 U.S. 306 (2003)

69. The Center for Disease Control (“CDC”) has made clear that “Schools are an

important part of the infrastructure of communities and play a critical role in supporting the whole

child, not just their academic achievement.”13 Nowhere in the guidance provided to local schools by

the CDC is any information about compelling students to wear face masks.

13
Preparing K-12 School Administrators for a Safe Return to School in Fall 2020. Guidance from the CDC to school
Districts.
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 70. Children cannot be expected to wear masks of any kind for the duration of a school

day. At some point, the mask has to come off; even adult medical professionals take breaks. And

anyone who’s worked with young children knows they will play with their masks and not even realize

they’re doing it. It’s simply unrealistic to expect otherwise. What occurs is that minor children will

touch their face far more often than they would.

71. Parents, and not the school board, are in the best position to determine whether or not

their minor children are capable of wearing face covering, and if they have the ability to do so for up

to 7 hours a day, five days a week.

72. Because many parents strongly object to their minor children wearing facemasks for

extended periods of time, every day of the school year, children are being forced to dis-enroll from

public school in favor of distance learning. Distance learning does not provide the same level of

education as that receiving classroom instruction.

73. The facemask policy is irrational because it does not protect students. To contrary, all

evidence suggests that children are less susceptible to catching COVID 19, or spreading it, and on

the rare occasions that they contract COVID 19, received the virus from adults, rather than spreading

COVID 19 to one another or to other adults.14

14
How easily children catch the disease? On this front, we have five studies (three published and two pre-print) to help
inform us. These studies all look more-or-less at the same thing, which is contact tracing. From cases that have been
confirmed positive (an index case), they trace back all the people who that case has been in contact with over the recent
past and test all of them for COVID-19 to see how many of them caught the illness from exposure to that index case.
The proportion of people who have had contact that subsequently became infected is referred to as the Attack Rate
(AR). Broadly speaking contacts can be split into two groups: household and non-household (this is important as
obviously you are much more likely to transmit to someone in your house). We can also split them up according to age,
and see if there is any difference in the number of children who catch the illness compared to adults.

A study from Shenzhen in China was the first to be released in pre-print in March and is now published in the Lancet
ID. This study assessed 1286 contacts of 391 initial cases and showed children had a similar attack rate to the
population average (7.4% vs 7.9%), but interestingly were much less likely to be symptomatic. This finding caused a lot
of concern, but more data has emerged since.

A pre-print study from Japan was released shortly after. They examined 2496 contacts of 313 domestically acquired
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 74. The evidence in fact points out that minor children rarely contract COVID 19.15 On

those occasions when a minor contracts COVID 19, the symptoms are often relatively minor, and

rarely if ever led to death.16 In point of fact, the science indicates that the Flu is up to seven (7) times

more deadly to minor children then COVID 19.17

75. Scientists are yet to find a single confirmed case of a teacher catching coronavirus

cases and found a much lower attack rate in children (7.2% males, 3.8% females) compared to adults (22% in people
aged 50 -59 years).

Another pre-print study from Guangzhou in China examined 2017 close contacts of 212 confirmed cases. The overall
attack rate was 12.6%, however, the attack rate in children was 5.3%. They calculated an odds ratio of acquiring
infection in children of 0.27 (0.13 – 0.55) compared to adults >60 years of age.

A study published in Clinical Infectious Diseases assessed household contacts in particular. They assessed 392 contacts
of 105 index cases in Wuhan, China (they had more stringent eligibility criteria to ensure they had correctly identified
the index case in the household i.e. the person who brought the infection in). Of the 100 contacts under 18 years of age,
only four became infected. This was compared to an attack rate of 21.9% among adult household contacts (making an
overall attack rate of 16%).

A further study published in Science included some far-reaching assessments of transmission, but for our purposes, we
will look at their findings regarding secondary attack rates in children. This was a contact tracing study from the Hunan
CDC in China. They assessed 114 clusters (some clusters had more than one index case) and 7375 contacts. A
regression analysis to adjust for other factors that influence AR (the type of transmission, travel history, etc) to
determine the odds of becoming infected at different age groups. They found an odds ratio of 0.34 (0.24–0.49) for
children under 14 years, compared to the reference group of 15-64 years (consistent across models).
15
Iceland tested 6% of their entire population and found dramatically lower numbers of cases in children, including
6.7% children under 10 positive in “targeted testing” (symptomatic or high risk due to contacts) compared to 13.7% of
those 10 and older, and found 0 children under 10 years positive in population screening (by invitation) compared to
0.8% of those over 10 years.

The Italian principality of Vo tested >85% of their population following their first death from COVID-19, and found no
positive cases in children despite 2.6% of the population being positive. This finding was repeated when they tested
again two weeks later – despite a number of children living in households with confirmed positive contacts.

Finally, a study in The Netherlands is undertaking community serology testing (looking for antibodies against SARS-
CoV-2 as evidence of current or previous infection) and has released preliminary results. They have found 4.2% of
adults are positive compared to 2% of those aged <20 years.
16
On April 6, the C.D.C. published preliminary findings on pediatric coronavirus cases in the United States. According
to the report, 2,572 cases occurred in children younger than 18, and those children were significantly less likely to
become seriously ill from the virus than American adults were. They also appeared less likely than adults to develop the
main coronavirus symptoms like fever, cough or shortness of breath.
17
According to the CDC, as of July 9, 2020, there were 169 Pediatric deaths due to the Flu. There has been a total of
26 deaths of minors under the age of 15 due to COVID 19.

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 from a pupil anywhere in the world, according to Dr. Mark Woolhouse, an infectious disease

epidemiologist at Edinburgh University. Professor Woolhouse, a member of the UK government’s

scientific advisory group, Sage, said that in hindsight closing schools in March was probably a

mistake, but the limited role children play in spreading the virus only became clear further along the

infection curve. Dr. Woolhouse is quoted as saying: “One thing we have learnt is that children are

certainly, in the five to 15 brackets18 from school to early years, are minimally involved in the

epidemiology of this virus.”19

76. Such a policy of requiring facemasks fails even a rational basis test, and is clearly not

in a child best interest when assessed through a factual, rather than fear based, lens. It is simply not

rational to believe that an ill-fitting mask, designed for the face of an adult, will be properly worn by

young children, 6-7 hours day, five days a week.

77. Even if one wishes to assume that masks likely blunt spread at school, children—even

more than adults—find them uncomfortable to wear for hours and may lack the self-discipline to

wear them without touching their faces or freeing their noses. Such discomfort overrides any potential

public health benefit.

78. The policy proposed, without public comment or debate, is not supported by the

evidence, the facts, the science, or the law. The evidence is that minor children are less suspectable

to catching COVID 19. The facts show that no child has ever passed the virus to a teacher. The

18
A peer review study published in the journal Nature Medicine found that children and teenagers are only half as
likely to get infected with the coronavirus as adults age 20 and older, and they usually don’t develop clinical symptoms
of covid-19, the disease caused by the virus. The study, is based on a survey of six nations: Canada, China, Italy,
Japan, Singapore and South Korea. The researchers developed mathematical models to interpret the demographic
patterns of covid-19 cases in those countries. Age-dependent effects in the transmission and control of COVID-19
epidemics Nicholas G. Davies, Petra Klepac, Yang Liu, Kiesha Prem, Mark Jit, CMMID COVID-19 working group &
Rosalind M. Eggo Nature Medicine (June 16 2020)
19
School closures ‘a mistake’ as no teachers infected in classroom: The Times of London, published 22 July 2020.
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 science makes clear that adults wearing mask protect children, not the other way around. The law

clearly shows that this policy fails a rational basis test, let alone a test based on strict scrutiny, with

no compelling interest, and where the policy itself is not narrowly tailored. A narrowly tailored

policy would compel all adults to wear masks. A narrowly tailored test would allow for students’

temperatures to be monitored and do what is possible to maintain social distancing in the classroom.

A narrowly tailored policy would involve having students wash their hands frequently. An order

that compels students to wear a mask, that is not properly fitted, and which invites the very conduct

we would hope to avoid (having hands touching the face) is a recipe for failure.

79. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm

to their constitutional rights unless Respondent is enjoined from implementing and enforcing the

Orders. Pursuant to Section 26.012 (3), F.S., 2019 and to Rule 1.610, Fla.R.Civ.P., Plaintiffs are

entitled to declaratory relief and preliminary, and permanent injunctive relief invalidating and

restraining enforcement of the HCSB facemask order.

80. Plaintiffs found it necessary to engage the services of private counsel to vindicate their

rights under the law and request the award of attorney fees to vindicate their rights.

SECOND CLAIM FOR RELIEF

THE FACEMASK ORDER FROM THE SUPERINTENDENT OF THE

HILLSBOROUGH COUNTY SCHOOL BOARD CREATES A SYSTEM OF
EDUCATION THAT IS BOTH SEPARATE AND UNEQUAL

81. Plaintiff incorporates herein by reference each and every allegation contained in

paragraphs 1-66 of this Complaint as though fully set forth herein.

82. Forced mask wear is compelling individual who feel strongly that such requirements

are not in the child best interest, as described above, are being forced into a Virtual and e-learning

83. In addition, those students who either refuse to comply or cannot comply with the
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 HCSB facemask order will be relegated to virtual learning off campus.

84. Such e-learning is inadequate, and provides a separate and unequal education in

violation of the Florida Constitution. In addition, to engage in eLearning has a cost to the parents

involved. While the HCSB insists that this type of education will be free, that is not the case. Both

Spectrum and Frontier required individuals to pay a fee in order to participate this past spring, and

the HCSB admits that both corporations have made it clear that they will not be providing cost free

Wi-Fi and internet.

85. In traditional classrooms, teachers can give students immediate face-to-face feedback.

Students who are experiencing problems in the curriculum can resolve them quickly and directly

either during the lecture or during the dedicated office hours. Personalized feedback has a positive

impact on students, as it makes learning processes easier, richer, and more significant, all the while

raising the motivation levels of the students. E-Learning, on the other hand, still tends to struggle

with student feedback.

86. The E-Learning methods currently practiced in education tend to make participating

students undergo contemplation, remoteness and a lack of interaction. As a result, many of the

students and teachers who inevitably spend much of their time online can start experiencing signs of

social isolation, due to the lack of human communication in their lives. Social isolation coupled with

a lack of communication often leads to several mental health issues such as heightened stress, anxiety,

and negative thoughts.

87. Lack of self-motivation among students continues to be one of the primary reasons

why students fail to complete online courses. In traditional classrooms, there are numerous factors

which constantly push students towards their learning goals. Face-to-face communication with

professors, peer-to-peer activities, and strict schedules all work in unison to keep the students from
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 falling off track during their studies. In the setting of an online learning environment, however, there

are fewer external factors which push the students to perform well. In many cases, the students are

left to fend for themselves during their learning activities, without anyone constantly urging them on

towards their learning goals.

88. All educational disciplines are not created equal, and not all study fields can be

effectively used in e-learning. For now, at least. E-Learning tends to be more suitable for social

science and humanities, rather than scientific fields which require a certain degree of hands-on

practical experience.

89. Asides from providing what is a separate and unequal education that is a poor

substitute for those receiving education that is hands on and in school, one that is not free in any sense

of the word, it is also unhealthy to sit a small child in front of a computer screen 6 hours a day.

90. The American Academy of Pediatrics recommends parents place a reasonable limit

on media. Elementary school-age children who watch TV or use a computer more than 2 hours per

day are more likely to have emotional, social, and attention problems. Those problems include:

educational problems, Obesity, Sleep problems and Violence.20

91. The HCSB policy concerning facemasks results in some parents having to choose

between the adverse impacts associated with long term face mask wear, and the deleterious effects of

eLearning. This is why the HSCB policy fails to meet the criteria required when interfering with

child’s fundamental right to a free education by enacting a policy that is narrowly tailored in order to

obtain a compelling interest. Instead, the HCSB facemask policy creates far more problems then it

would ever hope to solve, at the short- and long-term expense to children.

20
According to the American Academy of Child and Adolescent Psychiatry.

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 92. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm

to their constitutional rights unless Respondent is enjoined from implementing and enforcing the

Orders. Pursuant to Section 26.012 (3), F.S., 2019 and to Rule 1.610, Fla.R.Civ.P., Plaintiffs are

entitled to declaratory relief and preliminary, and permanent injunctive relief invalidating and

restraining enforcement of the HCSB facemask order.

93. Plaintiffs found it necessary to engage the services of private counsel to vindicate their

rights under the law and request the award of attorney fees to vindicate their rights.

THIRD CLAIM FOR RELEIF

THE FACEMASK ORDER FROM THE SUPERINTENDENT OF THE

HILLSBOROUGH COUNTY SCHOOL BOARD VIOLATES PARENTAL AUTHORITY
TO DETERMINE THEIR MINOR CHILD’S MEDICAL TREATMENT

94. Plaintiff incorporates herein by reference each and every allegation contained in

paragraphs 1-66 of this Complaint as though fully set forth herein.

95. The HCSB policy that requires minors to wear masks, as is being done here, meets the

definition of a medical device.21 Such wearing of a device interferes with the parents right to choose

the medical decision and treatments for their minor children in violation of Article I, § 23 of the

Florida Constitution.

96. The CDC and other agencies make clear that facemasks worn by children are not a

substitute for social distancing. Further, most government agencies make clear that minor children

should not wear masks while outside. The HSCB policy requires a mask be worn at all times, insider

21
According to the United States Food and Drug Agency, a face mask is a device, with or without a face shield, that
covers the user’s nose and mouth and may or may not meet fluid barrier or filtration efficiency levels. It includes cloth
face coverings as a subset. It may be for single or multiple uses, and if for multiple uses it may be laundered or cleaned.
There are many products marketed in the United States as “face masks” that offer a range of protection against potential
health hazards. Face masks are regulated by FDA when they meet the definition of a “device” under section 201(h) of
the Act. Generally, face masks fall within this definition when they are intended for a medical purpose. Face masks are
regulated under 21 CFR 878.4040 as Class I 510(k)-exempt devices (non-surgical masks).
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 or outside, from the bus stop to the school house door.

97. The decision to wear a mask is that of the parents to make, not the HCSB. Florida

law has traditionally recognized the right of parents to make health care decisions on their children's

behalf, on the presumption that before reaching the age of majority, young people lack the experience

and judgment to make fully informed decisions. The wearing of facemasks, under these facts, is

not one of those rare exceptions that permits the Government to overcome parental consent in the

child’s best interest. COVID 19 does not represent that level of imminent and immediate threat to

allow government to overcome the rights of the parents on this issue.

98. Parents have the responsibility and authority to make medical decisions on behalf of

their children. This includes the right to refuse or discontinue treatments, even those that may be life-

sustaining. While most physicians believe it is in a child’s best interest to receive the routine

childhood vaccinations and therefore recommend them to parents, they do not generally legally

challenge parents who choose not to vaccinate their children. Even if that was the case, a vaccination

is a one-time event. What is proposed here is the wearing of a medical device for extended periods.

A parent may feel quite strongly that such a medical device is not in the child’s best interest.

99. In order to overcome the parents right in determining a child’s medical care, the policy

must be one that is so compelling, that the life of child is in clear danger but for the treatment. Such

policy must be narrowly tailored and executed in only the most unique factual settings (e.g. lifesaving

chemotherapy treatment; necessary blood transfusion; or kidney dialysis, to name a few). In light

of the science that shows that COVID 19 is seven time less likely to harm a child then the flu, none

of the factors normally required to overcome parental consent exist.

100. Therefore, any mandatory rule that requires the wearing of facemasks that interferes

with parental consent is patently illegal and unconstitutional, because it interferes with the
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 fundamental right to received a free public education.

101. As stated infra, there is no scientific evidence to support that minors are a source

carrier of COVID 19. Additionally, the wearing of masks by those who so choose mitigates their

risk. However, the rights of others go only as far as the nose of the Plaintiff. The Plaintiffs have a

right to determine what touches their child’s nose, not the government.

102. Accordingly, Plaintiffs have no adequate remedy at law and will suffer serious and

irreparable harm to their constitutional rights unless Respondent is enjoined from implementing and

enforcing the Orders. Pursuant to Section 26.012 (3), F.S., 2019 and to Rule 1.610, Fla.R.Civ.P.,

Plaintiffs are entitled to declaratory relief and preliminary, and permanent injunctive relief

invalidating and restraining enforcement of the HCSB facemask order.

103. Plaintiffs found it necessary to engage the services of private counsel to vindicate their

rights under the law and request the award of attorney fees to vindicate their rights.

FOURTH CLAIM FOR RELEIF

VIOLATIONS OF THE FLORIDA CONSTITUTION

THE FACEMASK ORDER FROM THE SUPERINTENDENT OF THE
HILLSBOROUGH COUNTY SCHOOL BOARD VIOLATES THE
EQUAL PROTECTION CLAUSE ENSRHINED IN ARTICLE 1, § 2. 9. 21 and 23
OF THE FLORIDA CONSTITUTION

104. Plaintiff incorporates herein by reference each and every allegation contained in

paragraphs 1-66 of this Complaint as though fully set forth herein.

105. Article I of the Florida constitution contains important provisions regarding the basic rights of

all Florida citizens to be treated equally before the law and to have inalienable rights, among which

are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry,

and to acquire, possess and protect property. While there is no single, inflexible test by which our

courts decide whether the requirements of procedural due process have been met, fundamentally it
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 has been defined by the Courts to mean a structure of laws and procedures that hears before it

condemns and proceeds upon inquiry and renders a judgment after trial.22 Unfortunately, none of

these fundamental requirements were met in the underlying Facemask Orders that subjects children

to wear facemasks based on an irrational fear that these very same children catch and spread COVID

19.

Equal Protection Under Article 1 § 2

106. Florida constitutional guarantee of equal protection and the Fourteenth Amendment’s

guarantee of equal protection are substantially equivalent and analyzed in similar fashion. In

addition, Florida’s constitutional guaranty of equal protection under Article 1 § 2 of the Florida

Constitution has been defined to mean that no person or class of persons shall be denied the same

protection of the laws which is enjoyed by other persons or other classes in like circumstances in their

lives, liberty and property and in their pursuit of happiness. In the instant case, the Facemask Order

has the practical effect of treating different classes of students differently. The disparate and unequal

treatment of these separate entities is not fully explained and has no rational basis.

107. Equal Protection refers to the idea that a governmental body may not deny people

equal protection of its governing laws. The governing body state must treat an individual in the

same manner as others in similar conditions and circumstances.

22
See Watson v. Pest Control commission of Florida, 199 So2nd 777 (4th DCA, 1967). The constitutional guarantee of
due process extends to every type of legal proceeding. See Pelle v. Dinners Club, 287 So2nd 737, (Fla. DCA 3rd Dist
1974); Tomayko v. Thomas, 143 So2nd 227 (Fla. 3rd DCA, 1962); State ex rel. Barancik v. Gates, 134 So2nd 497 (Fla.
1961); It cannot be simply ignored by labeling the proceedings as merely “quasi-judicial” or administrative. Nor can it
be merely colorable or illusory. See Ryan’s Furniture Exchange v. McNair, 120 Fla 109, 162 So. 483 (1935). Nor can
it be a mere sham or pretense, Robbins v Robbins, 429 So2nd 424, 3rd DCA (1983). As outlined in the case of Neff v.
Adler, 416 So2nd 1240 at 1242-43 (Fla 4th DCA 1982) the fundamentals of procedural due process include a hearing
before an impartial decision-maker, after fair notice of the charges and allegations with a fair opportunity to present
one’s own case. Fundamental due process includes the duty of the individual presiding over the hearing to apply a
correct principle of law or rule, see State v. Smith, 118 So2nd 792 (Fla.1st DCA, 1960).

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 108. Courts have generally ruled that most classifications imposed by the government do

not deny persons equal protection of the laws. Generally, a legislature may make distinctions

among people for any proper purpose, as long as the distinction is rational.23 There must be a

logical relationship between the purpose of a law and any classification of people that it makes.

Without this "rational basis," a law will be struck down when challenged in court.24 However, in

this case, we are dealing with a Constitutional right to received a free public education. Therefore,

the test is far higher. The proposed distinctions here must have a compelling interest, and be

narrowly tailored, and pass strict scrutiny.25

109. The Facemask Order at issue here, however, is utterly irrational in light of how

COVID 19 operates. Either everyone needs to wear a mask to ensure safety, or not. What is

really being done is to provide a series of regulations to be seen to be doing something that has no

basis in science. In the case of the HCSB facemask regulation, exceptions are made for individuals

who are considered students with “special needs” but not for any others. Students with health

exceptions, not specified, are also excluded. However, the science concerning COVID 19 tells us

that these are the exact individuals who need the most protection. Instead, they are given special

privileges not applied to others students, and in doing so, violate equal protection, for no valid

rational purpose

23
To pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a
rational connection between the statute's/ordinance's means and goals.
24
Reed v. Reed, 404 U.S. 71 (1971), the United States Supreme Court invalidated an Idaho statute that preferred males
over females in the selection of a probate administrator. The Court explained that the equal protection issue was
“whether a difference in the sex of the competing applicants for letters of administration bears a rational relationship to
a state objective that is sought to be advanced by the operation of [the statute].” The Court concluded that it did not
since it was arbitrary to prefer men over women merely to avoid hearings on the merits.
25
North Florida Women's Health & Counseling Services, Inc. v. State, 866 So.2d 612, 635 (Fla. 2003)
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 Due Process Under Article 1 § 9

110. Article I, § 9 of the Florida Constitution provides that “No person shall be deprived of

life, liberty or property without due process of law...”26 Under Florida Statutes § 1006.09, a Student

may be suspended only in accordance with the school board’s rules. The facemask rule is not a rule

that has been formally adopted by the school board, but rather a policy statement put forth by the

Superintendent, in violation of the Florida Sunshine Act.

111. Respondent’s facemask orders imply that students who do not comply with the HCSB

facemask regimen will be moved out of the public schools and into distant learning. This is

tantamount to an expulsion from the public school, and has great implications to families who have

work requirements, and are unable to monitor their child during the day.

112. The HCSB policy states clearly that “The District will work with families to identify

the more appropriate learning path if face coverings will not be worn.” Translation: expulsion from

public schools and placement into distant learning for those failing to comply, on the grounds that the

failure to wear a facemask is a disruption to the classroom. The secondary effect of this policy is to

employ teachers as the facemask police for children who lack the maturity level to comply with this

policy on a long-term basis, hour after hour, day after day.

113. This violates the due process rights of the parents and the minor, because the policy

itself does not provide a clear process by which these decisions are to made. Some children are

going to simply be incapable of maintaining the discipline necessary to wear a mask for hours at a

time. The standard being applied to students is far more strident then any similar policy that is

applied to adults.

26
See generally Stromberg v. California, 283 U.S. 259 (1931) (voided a state statute on grounds of its interference with
free speech. State common law was also voided, with the Court in an opinion by Justice Black asserting that the First
Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law).
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 . 114. Schools should be safe, and students should not have to be afraid. But students must

also be able to enjoy the freedoms that enable them to learn and thrive. However, the policy as stated

by the HCSB allows for the failure to wear a mask by a student to be defined as disruptive conduct,

subject to discipline. Such passive conduct has never once been defined by any school policy as

requiring discipline.

115. This policy has the absurdity of taking teachers, who have absolutely no medical

training whatsoever, to monitor the use of a medical device, on minor children, who lack the requisite

maturity and discipline to wear a device for extended periods beyond what is expected of grown

adults. Never before has a standard been employed to minors that is higher and stronger in nature

than that applied to the adults. The school teachers will get a break through out the day. During

these breaks, one envisions that the school teacher themselves will take a break from wearing a mask.

However, the students get no such accommodations. Failure to comply has consequences.

116. It is also important to remember that the consequences of this policy are employed for

violating a rule that has absolutely no rational basis whatsoever, and does absolutely nothing to

protect the students or teachers involved.

Right of Privacy Under Article 1 §23

117. The Florida Constitution protects every” natural person has the right to be let alone

and free from governmental intrusion into the person’s private life”.

118. Interpreting the Privacy Amendment, the Florida Supreme Court has recognized a

fundamental right to privacy in Florida27 that is broader and more protective than the federal right to

27
See Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1246 (Fla. 2017); State v. J.P., 907 So. 2d 1101,
1110 (Fla. 2004); Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998); City of North Miami v. Kurtz, 653 So. 2d
1025, 1027 (Fla. 1995); Winfield v. Division of Pari-Mutuel Wagering, Dept. of Business Regulation, 477 So. 2d
544, 547 (Fla. 1985).

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 privacy offered by the Fourteenth Amendment to the U.S. Constitution.28 Whereas the Fourteenth

Amendment’s liberty protections extend to specific “zones of privacy”29 (e.g., marriage,30

procreation,31 contraception,32 abortion family,33 relationships,34 and child rearing and education35),

Florida’s Privacy Amendment “extends to all aspects of an individual's private life…, and it ensures

that the state cannot intrude into an individual's private life absent a compelling interest.”36

119. The Florida standard for privacy is broader than the less-defined federal standard. The

Florida standard for privacy demands that government justify any intrusion into one’s privacy with

(1) a compelling state interest and (2) the least intrusive means to accomplish that compelling state

interest. The addition of Florida’s Privacy Amendment undoubtedly enhances Floridians’ right to

protect themselves from a broad range of governmental intrusions.

120. Florida Supreme Court Justice Ben F. Overton has acknowledged that Florida’s

Privacy Amendment “has had its greatest effect on Floridians in the area of personal autonomy.

121. A parent’s ability to make decisions about one’s own children has been recognized in

28
Gainesville Woman Care, LLC, 210 So. 3d at 124; Winfield, 477 So. 2d at 547–48 (Fla. 1985); see Griswold v.
Connecticut, 381 U.S. 479 (1965) (recognizing an implicit right to privacy under the “liberty” protections of the
Fourteenth Amendment to the U.S. Constitution).
29
Roe v. Wade, 410 U.S. 113, 152 (1973).
30
See Obergefell v. Hodges, 576 U.S. __ (2015); Loving v. Virginia, 388 U.S. 1 (1967).
31
See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Buck v. Bell, 274 U.S. 200 (1927).
32
See Eisenstadt v. Baird 405 U.S. 438 (1972).
33
See Planned Parenthood v. Casey, 505 U.S. 833 (1992); Roe, 410 U.S. 113.
34
See Prince v. Massachusetts, 321 U.S. 158 (1944).
35
Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Meyer v. Nebraska, 262 U.S. 390 (1923).
36
Honorable Ben F. Overton & Katherine E. Giddings, The Right of Privacy in the Age of Technology and the
Twenty-First Century: A Need for Protection from Private and Commercial Intrusion, 25 FLA. ST. U. L. REV. 25,
40–1 (1997).
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 areas such as discipline, education, and health care as having both liberty and privacy interests. A

similar concern could apply to governmental intervention in parental decisions relating to home

schooling and other alternative education decisions.

122. The HCSB requirements that minor children wear masks in order to enjoy their

fundamental right to a free education also interferes with their privacy rights as protected by the

Florida Constitution. Such mask policy interferes with parental decision making, and also runs a

foul of this constitutional protection.

123. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm

to their constitutional rights unless Respondent is enjoined from implementing and enforcing the

Orders. Pursuant to Section 26.012 (3), F.S., 2019 and to Rule 1.610, Fla.R.Civ.P., Plaintiffs are

entitled to declaratory relief and preliminary, and permanent injunctive relief invalidating and

restraining enforcement of the HCSB facemask order.

124. Plaintiffs found it necessary to engage the services of private counsel to vindicate their

rights under the law and request the award of attorney fees to vindicate their rights.

FIFITH CLAIM FOR RELIEF

THE FACEMASK ORDER FROM THE SUPERINTENDENT OF THE

HILLSBOROUGH COUNTY SCHOOL BOARD WAS ADOPTED IN
VIOATION OF ARTICE I, § 24(B)
OF THE FLORIDA CONSTITUION

125. Plaintiff incorporates herein by reference each and every allegation contained in

paragraphs 1-66 of this Complaint as though fully set forth herein.

126. Section 286.0105, Florida Statutes, requires:

Each board, commission, or agency of this state or of any political subdivision thereof
shall include in the notice of any meeting or hearing, if notice of the meeting or hearing
is required, of such board, commission, or agency, conspicuously on such notice, the
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 advice that, if a person 24 decides to appeal any decision made by the board, agency,
or commission with respect to any matter considered at such meeting or hearing, he
or she will need a record of the proceedings, and that, for such purpose, he or she may
need to ensure that a verbatim record of the proceedings is made, which record
includes the testimony and evidence upon which the appeal is to be based. Where a
public board or commission acts as a quasi-judicial body or takes official action on
matters that affect individual rights of citizens, in contrast with the rights of the public
at large, the board or commission is subject to the requirements of section 286.0105,
Florida Statutes. Op. Att'y Gen. Fla. 81-06 (1981).

127. The HCSB facemask order was adopted without any notice to the general public, and

with no chance for the public comment. The process by which the adoption of the order by the

Superintendent of Hillsborough County schools violated multiple Florida Statutes.

128. Article I, Section 24(b) of the Florida Constitution requires all meetings of public

entities to be in public and noticed. The facemask order was placed into effect with no notice, hearing

or publication of the law as of July 7, 2020.

129. Article I, Section 24(b) of the Florida Constitution requires all meetings of public

entities to be in public and noticed. “All meetings of any collegial public body of the executive

branch of state government or of any collegial public body of a county, municipality, school district,

or special district, at which official acts are to be taken or at which public business of such body is to

be transacted or discussed, shall be open and noticed to the public and meetings of the legislature

shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings

exempted pursuant to this section or specifically closed by this Constitution. Any exemptions from

complying with this requirement must be specifically spelled out in state law.

130. Fla. Stat. 286.0115(2) states: Members of the public shall be given a reasonable

opportunity to be heard on a proposition before a board or commission. The opportunity to be heard

need not occur at the same meeting at which the board or commission takes official action on the

proposition if the opportunity occurs at a meeting that is during the decision-making process and is
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 within reasonable proximity in time before the meeting at which the board or commission takes the

official action.

131. Florida Statute 286.0115(3) provides the following exemption: The requirements in

subsection (2) do not apply to:

(a) An official act that must be taken to deal with an emergency situation affecting
the public health, welfare, or safety, if compliance with the requirements would
cause an unreasonable delay in the ability of the board or commission to act;

132. However, the nature of how this facemask order was adopted unilaterally, without

hearing or public comment, nearly 7 weeks before the start of schools (now set for August 24, 2020)

clearly shows that the need for such actions that avoids Florida Constitutional requirements did not

constitute an emergency in any sense of the word.

133. This exemption applies only to an emergency situation, and it is not a blanket

exemption for all acts taken during an emergency declaration.

134. Pursuant to at least Florida black-letter law, acts of boards in violation of sunshine

requirements do not have the force of law, unless subsequently adopted or ratified in a manner

consistent with open government requirements.

135. Finally, Florida Stat 252 established the emergency powers of the Governor and

counties. It does not provide a specific exemption for compliance with 286. In parts pertinent to

this situation, Florida Statute 252.46(2) states:

All orders and rules adopted by the division or any political subdivision or other
agency authorized by ss. 252.31-252.90 to make orders and rules have full force and
effect of law after adoption in accordance with the provisions of chapter 120 in the
event of issuance by the division or any state agency or, if promulgated by a political
subdivision of the state or agency thereof, when filed in the office of the clerk or
recorder of the political subdivision or agency promulgating the same. All existing
laws, ordinances, and rules inconsistent with the provisions of ss. 252.31-252.90, or
any order or rule issued under the authority of ss. 252.31-252.90, shall be suspended
during the period of time and to the extent that such conflict exists.
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 136. Violations of Florida’s Sunshine Law can bring stiff and far reaching consequences,

some of which are not just against the board members, Superintendent, etc. involved. For starters,

there can be criminal penalties. If a board member, Superintendent, etc. knowingly violates the

Sunshine Law, the individual is likely guilty of a second-degree misdemeanor.

137. Furthermore, an individual can be removed from office or suspended. Specifically,

the Governor may suspend elected or appointed officials who are indicted for misdemeanor

violations arising out of their official duties

138. Section 286.011(4), Florida Statutes. Section 286.011(4) essentially states that when

a violation is found, the plaintiff’s reasonable attorney’s fees shall be assessed. The fees can be

assessed against the individual board members, Superintendent, etc. unless they sought and took the

advice of the board’s, commission’s, etc. attorney.

139. The Sunshine Law extends to the discussions and deliberations as well as the formal

action taken by a public board or commission or an individual Superintendent acting in the capacity

of the board. There is no requirement that a quorum be present for a meeting of members of a

public board or commission to be subject to section 286.011, Florida Statutes. Instead, the law is

applicable to any gathering, whether formal or casual, of two or more members of the same board

or commission to discuss some matter on which foreseeable action will be taken by the public board

or commission. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973).

140. Section 119.11(1), Florida Statutes, mandates that actions brought under Ch. 119 are

entitled to an immediate hearing and take priority over other pending cases. See, Matos v. Office of

the State Attorney for the 17th Judicial Circuit, 80 So. 3d 1149 (Fla. 4th DCA 2012) (“[a]n

immediate hearing does not mean one scheduled within a reasonable time, but means what the

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 statute says: immediate”). See also Clay County Education Association v. Clay County School

Board, 144 So. 3d 708 (Fla. 1st DCA 2014). “The purpose of the hearing is to allow the court to

hear argument from the parties and resolve any dispute as to whether there are public records

responsive to the request and whether an exemption from disclosure applies in whole or in part to

the records.” Kline v. University of Florida, 200 So. 3d 271 (Fla. 1st DCA 2016).

141. Because the Superintendent acted to pass a Facemask Order without public notice or

comment, during a period of time where an emergency was not present that required forgoing of

such notice, the actions taken by the HCSB should be found to be both null and void.

142. Attorney fees in such cases are warranted. Additionally, based on the foregoing, a

temporary injunction is appropriate.

143. Plaintiffs found it necessary to engage the services of private counsel to vindicate their

rights under the law and request the award of attorney fees to vindicate their rights.

SIXTH CLAIM FOR RELIEF

THE FAILURE TO OPEN SCHOOLS BY THE

HILLSBOROUGH COUNTY SCHOOL BOARD VIOLATES
ARTICE IX AND ARTICLE 1, SECTION 2 OF THE FLORIDA CONSTITUION

144. The HCSB has declared that they will keep all schools closed for the first week of the

semester, and require all students to attend eLearning.

145. This policy violates IX and Article I, section 2 of the Florida Constitution. In addition,

this policy compels students that attend public schools to receive a separate and unequal education,

as eLearning subjects’ students to a substandard education. Additionally, in the case of those students

in elementary school, eLearning subjects them to a process that deleterious to their long term mental

and physical health.

146. Additionally, the HCSB violates the law by failing to provide in person education.
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 Governor DeSantis has urged Florida’s school districts to ensure that parents have the choice between

in-person and distance learning for their kids. The Governor has made clear his own concerns with

Hillsborough County’s decision as Florida law requires school districts to offer certain amount of in-

person instruction. The Florida Education Commissioner has alerted the HCSB that their policy

violates Florida law.

147. The HCSB new order violates their own reopening plan as well as the Governor’s

emergency order. In short, the failure to reopen schools is patently illegal and violates both state law

and the Florida Constitution requirement to offer a free public education. Additionally, the HCSB

present plan will offer students a separate and unequal education.

148. The HCSB plan to compel eLearning also violates Article I, section 2 of the Florida

Constitution as it violates equal protection for children in Hillsborough County. For simply living on

the wrong side of the county line, Hillsborough Students are subject to a sub-standard education. This

separate but unequal education violates longstanding principles embodied by our laws. See Brown

v. Board of Education of Topeka, 347 U.S. 483, at 493 (1954).

149. The HCSB seems more concerns with the rights of their union members then that of

the children they are employed to educate. The unreasonable fear mongering by employees of the

school board must come as some surprise to minimum wage workers at a Walmart or Public, who

deal with thousands of people of the general public with nothing more than a cloth mask to protect

them. Medical personnel who deal with COVID 19 patients also are required to go to work each

day. School board employees seem to fear young students, are highly unlikely to give them COVID

19 anymore than a trip to their local Public will.

150. At some point the irrational fear will end. Until that time, it is incumbent upon this

court to impose some spine where the political will to do so shrinks before its legal obligations to
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 educate our children. Attorney fees are warranted. Additionally, based on the foregoing, a

temporary injunction is in order.

151. Plaintiffs found it necessary to engage the services of private counsel to vindicate their

rights under the law and request the award of attorney fees to vindicate their rights.

IX. MEMORANDUM OF LAW

FOR CONSIDERATIONS FOR THE ISSUANCE OF INJUNCTIVE RELIEF

152. A temporary injunction should be granted where there is a showing of:

(1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law, (2)

the substantial likelihood of success on the merits, (3) that the threatened injury to petitioner outweigh

any possible harm to the respondent, and (4) that the granting of the preliminary injunction will not

disserve the public interest. See Cosmic Corp. v. Miami-Dade County, 706 So.2d 347 (Fla. 3d DCA,

1998). The same considerations generally apply to the issuance of a Temporary Restraining Order,

usually an emergency procedure to maintain the status quo until an injunction hearing can be held. In

this submittal, the Plaintiffs will set forth a substantial and sufficient basis to show that each of these

separate criteria are met and the facts and law set forth herein clearly justify the injunctive relief

sought.

A. THE ENFORCEMENT OF THE CHALLENGED

FACEMASK ORDER IS CAUSING PLAINTIFFS IRREPARABLE HARM AND
PLAINTIFFS HAVE NO ADEQUATE REMEDY AT LAW

153. The Plaintiffs in this action are residents who seek judicial review, due to the unlawful

nature of the HCSB facemask order and in the manner in which it was adopted in violation of Florida

Statutes.

154. The pertinent portions of this order, all of which point to its unconstitutionality, are set

forth in aforementioned sections, but the bottom line is that the HSCB is presently requiring parents to

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 make long terms decisions as to whether to enroll the children in brick and motor schools or to go with

eLearning. Once enrolled, a parent is not allowed to change their minds. Therefore, a decision needs

to made immediately if the rights of the Plaintiffs are to be protected.

155. The HSCB face mask mandate manifests a clear and present threat to the civil liberties

of Plaintiffs’ resulting in several forms of irreparable harm, vastly exceeding any form of harm simply

compensable with money damages. The most egregious form of the irreparable harm occasioned by

the challenged order is found in the loss of constitutional rights and freedoms manifest in the

Plaintiffs’ rights to engage in the conduct of their lives without excessive government interference

with orders that have no nexus to the goals they attempt to achieve. In every case, the HCSB

facemask order is not narrowly tailored, and fails to achieve its compelling interest while interfering

with Plaintiff fundamental right to a free public education that is not separate and unequal.

156. The Plaintiff’s rights and freedoms include, generally, the right to due process of law,

the right to equal protection of the law, the right to privacy and the fundamental right to enjoy a free

public education. The loss of any constitutional right or freedom, in and of itself, constitutes

irreparable harm. See Tampa Sports Authority v. Johnston, 914 So.2d 1076 (Fla. 2d DCA 2005).

157. The irreparable harm described above is the direct result of the threatened enforcement

of the facemask order against the plaintiffs and their children, and the application of the

unconstitutional provisions of the order against Plaintiffs. Plaintiffs have no adequate remedy at law

because there is no plain, certain, prompt, speedy, sufficient, complete, practical, or efficient way to

attain the ends of justice without enjoining immediately the threatened enforcement of the facemask

order.

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 B. THE MAINTENANCE OF THE STATUS QUO IS
JUSTIFIED AND NECESSARY
WHILE THIS MATTER IS LITIGATED

158. The status quo prior to the Superintendent’s unilateral action to impose a facemask

rule upon the Plaintiffs should be maintained while litigation is ongoing. Plaintiffs should be allowed

to make a decision voluntarily as to whether their minor children will or will not wear a face covering

while attending school, as is their right under the Florida Constitution. without fear of harassment by

the School Board employees, or any functionary assigned by the HCSB to “enforce” or “inspect” the

subject activities. Plaintiffs’ other constitutional rights and the maintenance of the status quo require

the issuance of a TRO and subsequent temporary injunction.37

159. In the instant action, the last “peaceable non-contested condition” that preceded this

controversy was that the Plaintiffs were enjoying their rights to enroll their minor children to enjoyh

their fundamental right to a free public education unencumbered by governmental interference. The

status quo should be preserved by the issuance of a TRO and subsequent temporary Injunction.

C. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD

OF SUCCESS ON THE MERITS INVALIDATING
THE CHALLENGED LEGISLATION

160. The next consideration in evaluating the grant of injunctive relief is whether the party

seeking the injunction shows a substantial likelihood of success on the merits. In the instant action,

Plaintiffs can and have shown numerous grounds supporting the relief requested, any one of which

would be sufficient to justify the injunctive relief sought herein, and all of which clearly establish

that the challenged legislation is invalid and unconstitutional.

37
... The status quo preserved by a temporary injunction is the last peaceable non-contested condition that preceded the
controversy, Bowling v. National Convoy & Trucking Co., 135 So. 541 (Fla. 1931). One critical purpose of temporary
injunctions is to prevent injury so that a party will not be forced to seek redress for damages after they have occurred.
Lewis v. Peters, 66 So.2d 489 (Fla. 1953). ... Bailey v. Christo, 453 So.2d 1134 (Fla. 1st DCA 1984).

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 161. Equally as dominant as a “general rule” is the fact that the injunctive remedy is

appropriate, on proper showing of injury, to restrain the enforcement of an invalid law. Daniel v.

Williams, 189 So. 2d 640 (Fla. Dist. Ct. App. 2d Dist. 1966); Board of Com'rs of State Institutions v.

Tallahassee Bank & Trust Co., 100 So. 2d 67 (Fla. Dist. Ct. App. 1st Dist. 1958)(emphasis added).

The injury may consist in the right to earn a livelihood and continue in one's employment. Watson v.

Centro Espanol De Tampa, 158 Fla. 796, 30 So. 2d 288 (1947). Persons who are the subject of

harassment by overzealous, improper, or bad-faith use of valid statutes may be afforded the protection

of injunctive relief. Kimball v. Florida Dept. of Health and Rehabilitative Services, 682 So. 2d 637

(Fla. Dist. Ct. App. 2d Dist. 1996). The instant action manifests all these components. Metropolitan

Dade County v. Florida Processing Co., 218 So. 2d 474 (Fla. Dist. Ct. App. 3d Dist. 1969)(emphasis

added). 38

D. THE PUBLIC INTEREST AND “BALANCING TEST”

162. The Constitutions of the State of Florida and the United States are the ultimate

expressions of the public interest. As a result, the Plaintiffs’ rights to enjoy their constitutionally

protected rights to conduct their lives free from government intrusion and interference, enjoy due

process of law, equal protection of the laws, and the numerous other rights articulated in the above

sections cannot be lawfully abridged through the enforcement of the HCSB facemask order. The

greatest public interest lies in the freedoms and rights to due process guaranteed by the Constitution.39

Therefore, the overall public interest is served by safeguarding these Constitutional freedoms and the

38
The circumstances must be exceptional and the danger of irremediable loss must be great and immediate. Pohl
Beauty School v. City of Miami, 118 Fla. 664, 159 So. 789 (1935). Both conditions are present in this action.
39
... Similarly, the public interest is served by any abatement of unconstitutional activity. Illinois Migrant Council v.
Pilliod, 540 F.2d 1062, 1071, (7th Cir. 1976). Decker, supra See, also, DiDomenico v. Employers Cooperative
Industry Trust, 676 F.Supp. 903 (N.D. Ind. 1987) and Zurn Constructors, supra.
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 right to due process.

E. NOTICE REQUIRMENTS OF THE

FLORIDA RULE OF CIVIL PROCEDURE 1.610

163. A Temporary Injunction may be granted without written or oral notice to the adverse

party only if it appears from the specific facts shown by affidavit or verified pleading that

immediate and irreparable injury, loss, or damage will result to the movant before the adverse party

can be heard in opposition. Time is of the essence for both Plaintiffs and the Defendant as the

HSCB and the Plaintiffs must make decisions based on the state of play. Asking the HCSB to

move on a dime, given the size of the district, is not reasonable. Plaintiff as well need to be able to

make decisions as to where their minor children will go to school, whether with the Hillsborough

County Public Schools, home schooling, private schooling or something else. In all cases, time is

not a luxury that anyone has at this point. That has been clearly shown in the pleadings as stated,

infra.

164. In addition, the movant's attorney must certify in writing any efforts that have been

made to give notice and the reasons why notice should not be required. In this case, the School

Board office is located a few blocks from the Courthouse, and will be served concurrently with the

electronic filing of this complaint. However, for this court to grant relief, we urge this court to give

consideration that notice should not be required, as the injuries to Plaintiff’s and those similarly

situated is immediate, ongoing, and compelling.

X. CONCLUSION

Plaintiffs have demonstrated their entitlement to either a Temporary Injunction under Florida

law and further still have demonstrated their entitlement to either a Preliminary or Permanent

Injunction under State law. As shown herein, Plaintiffs will suffer irreparable harm if injunctive
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 relief and a Temporary Injunction do not issue: as a matter of law, there is no adequate remedy at law

for the current and continued deprivation of their constitutional rights and Plaintiffs have a clear legal

right to the relief requested and a substantial likelihood of success on the merits in this action. Most

importantly, the public interest demands the preservation of constitutional rights and representation

by the people in law-making by the officials they elect for this function. Accordingly, this Court is

requested to hold an appropriate hearing and GRANT the request for Temporary Injunction,

temporarily enjoining the Defendant and HCSB from further enforcement of the facemask order, until

such time as a full evidentiary hearing can be held on the issuance of a permanent injunction.

WHEREFORE, Plaintiffs respectfully request this Court grant the relief requested herein,

and issue a Temporary Injunction against Defendants, enjoining the enforcement of the Facemask

Order against Plaintiffs and all other citizens of Hillsborough County, pending the Court’s

determination of the merits of an application for a Permanent Injunction.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully requests that this Court GRANT the following relief:

a) Declaring the HSCB Facemask Order as an unconstitutional violation of Article IX,

Florida Constitution in that the order interferes with the Fundamental Right to receive a

free public education, and;

b) Declaring the HSCB Facemask Order as an unconstitutional violation of Article IX,

Florida Constitution in that the order compels Plaintiffs to accept an educational platform

in the way of eLearning that is separate and unequal, and;

c) Declaring the HCSB Facemask Order as an unconstitutional violation of Article I, § 23

of the Florida Constitution in that the Facemask Order interferes with Parental Rights

over their children’s use or nonuse of a medical devices, and;

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 d) Declaring the HCSB Facemask Order as an unconstitutional violation of Article I, § 2

of the Florida Constitution in that the Facemask Order violated both Equal Protection,

and;

e) Declaring the HCSB Facemask Order as an unconstitutional violation of Article I, § 9 of

the Florida Constitution in that the Facemask Order violated the Due Process rights of

the Plaintiffs, and;

f) Declaring the HCSB Facemask Order as an unconstitutional violation of Article I, § 23

of the Florida Constitution in that the Facemask Order violated the Plaintiffs Rights to

Privacy, and;

g) Declaring the implementation of the HCSB Facemask Order violates Article I, § 24(B)

of the Florida Constitution., and;

h) Awarding any and all attorney's fees and costs as authorized by law;

i) Awarding any and all actual, consequential and special damages to which Plaintiffs may

be entitled.

j) Such other and further relief as this Court deems fit, just, and equitable.

Respectfully Submitted,

Patrick N. Leduc
Patrick N. Leduc 0964182
4809 E. Busch Blvd., Ste. 204
Tampa, FL 33617
813-985-4068
813-333-0424
Florida Bar #0964182

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing has been furnished to

Jim Porter, Esq., Hillsborough County School Board, 901 East Kennedy Boulevard, Tampa, Florida

33602, via e-mail to [email protected] , on this 13th day of August 2020.

Respectfully Submitted,

Patrick N. Leduc
Patrick N. Leduc 0964182
4809 E. Busch Blvd., Ste. 204
Tampa, FL 33617
813-985-4068
813-333-0424
Florida Bar #0964182
Attorney for the Plaintiff’s

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