Are the penalties for not wearing a mask legal?
Yes, according to the Order of 14th July 2020, in Andalusia, the use of masks is mandatory for everyone over 6 years of age, even if a safety distance of 2 meters is guaranteed. Masks must be used in all open public and closed spaces, offices, shops, public transport, beaches, and pools, etc. The penalty for an infringement is a 100 Euros as a minor offence, in accordance with the provisions of Royal Decree Law 21/2020.
The obligation to use the mask will not be enforceable for people who have any type of illness or respiratory difficulty, that may be aggravated by using it, if they hold an accrediting medical certificate. Nor will it be required for those people who, due to their disability or dependency, cannot remove the mask, or who have behavioural difficulties, that make its use unviable.
In cases of individual sports in the open air, its use will not be required either, nor in cases of force majeure or situation of necessity, or when due to the nature of the activities, the use of the mask is incompatible, in accordance with the indications of the health authorities.
It will not be necessary to wear a mask on beaches or swimming pools during bathing and while staying in a certain space, if the interpersonal safety distance between users can be respected. However, for trips and walks on the beaches and by swimming pools, the use of a mask will be mandatory.
The functions of surveillance, inspection and control correspond to the Autonomous Communities and local entities. Lifeguards and beach surveillance personnel do not have the status of law enforcement officers and cannot impose sanctions.
The power to sanction or not a certain behaviour, such as the use of the mask at a certain specific time, is at the discretion of the authority, which in some cases produces a legal situation in which the citizen has to justify or try to prove that they are not contravening the established norm. It must be considered that the statements of the authority have a presumption of truthfulness.
For example, walking on the beach without a mask can be an offence, except for intention to go swimming. Therefore, it is important to read the fine to establish the allegations to it.
The regulations governing the use of masks establish “that it shall not be required either in the development of activities in which, due to their nature, their use is incompatible or if there is a cause of force majeure or a situation of necessity, or in the development of activities that are incompatible, such as the intake of food and beverages”, since the activities exempted from wearing a mask are not clearly specified, a fine can be challenged and the sanction may be appealed.
The regulations have been changed recently to include the prohibition of smoking in the street and on the terraces of hospitality establishments, if a safety distance of 2 meters is not guaranteed, since it was one of the activities incompatible with the use of a mask.
Once the fine is received, allegations can be presented within 15 business days, along with evidence to defend the case. Administratively, the intervention of a lawyer is not necessary, although it is recommended. Appeals against sanctions can be presented at the Government Sub-delegation, and organs of the General State Administration, Autonomous Communities, and town halls, as well as at Post Offices (in that case, after paying the postal cost of the certificate). It is always recommended to keep the sealed copy of the appeal.
In any case, it is important to remember that when appealing the possibility of obtaining a 50% reduction in the penalty for prompt payment is lost, as established by the Law of Administrative Procedure, which conditions the discount on the withdrawal or resignation of any administrative appeal.
Once the administrative process is finished, if the sanction is confirmed, it is possible to initiate the judicial route (where a lawyer will be necessary).
Although the chances of citizens taking the matter to court are low, regarding face mask fines, due to the possible cost of the procedure in relation to the low amount of the sanction imposed.
A totally different case are very serious infringements, which can result in fines of 30.000 € to 60.000 €. The penalties imposed for minor infringements prescribe after one year, those imposed for serious misconduct after three years and very serious offences after five years.