an “oxygen deficient atmosphere,” which the United States Department of Labor, Occupational

Safety and Health Administration (“OSHA”) defines as an “atmosphere with an oxygen content

below 19.5% by volume.” 29 CFR 1910.134(b). Forcing people to work, live, shop, eat, and visit

in an environment where the oxygen level falls below 19.5% has been proven to cause irreparable

physiological damage to the body of humans and begins depriving them of much needed oxygen

to a dangerous level within just fifteen (15) seconds (or much less) of putting on a face covering.

Doctors, scientists, and other medical professionals will line up in this Court to demonstrate and

testify that face coverings lower oxygen levels in the immediate atmosphere of someone wearing

face coverings to less than the Department of Labor’s required 19.5%, normally within less than

fifteen (15) seconds. Depriving people of oxygen has been proven to create physiological damage,

which is indisputably an unacceptable health hazard.

2. The Plaintiffs either own or visit businesses in Tulsa; the Tulsa Mask Mandate,

with a few arbitrary and capricious exceptions, requires everyone to wear masks while present in

Tulsa retail and other locations. Plaintiffs and, where applicable, their employees experience

significant symptoms and side effects from wearing a face covering, including migraine

headaches, shortness of breath, and dizziness; also while wearing a face covering, they feel light

headed, claustrophobic, nervous, anxious, and stressed. Put simply and colloquially, while

wearing a face covering, Plaintiffs and their employees (as applicable) cannot breathe, and find

themselves gasping for air. They do not normally have these symptoms or side effects when not

wearing a face covering.

3. And these symptoms and side effects Plaintiffs experience from wearing a face

covering are not limited to any particular style of face covering or any particular face covering

manufacturer. These symptoms and side-effects occur repeatedly, consistently, predictably – and

2
cause harm – across the board. Indeed, all of these face coverings have one thing in common:

they all cause Plaintiffs to experience the same health threatening symptoms.

4. Making matters worse, while being required to wear a face covering at their

business locations in Tulsa, because face coverings reduce the oxygen available to Dr. Zoellner

and Mr. Clark and the other Plaintiffs (as applicable) while they and their employees are wearing

one, the symptoms and side effects they experience, particularly light headedness and dizziness,

cause them and their employees to be at risk of additional hazards, including but not limiting to

passing out. This makes it unreasonably difficult to live, to work, and to pursue happiness, all of

which are addressed in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness.--That to secure these rights,
Governments are instituted among Men, deriving their just powers from the consent
of the governed, --That whenever any Form of Government becomes destructive of
these ends, it is the Right of the People to alter or to abolish it, and to institute new
Government, laying its foundation on such principles and organizing its powers in
such form, as to them shall seem most likely to effect their Safety and Happiness.

5. This is an extremely serious issue: the Tulsa Mask Mandate is compromising the

health of the Plaintiffs, and the health of every single employee, citizen, and guest of Tulsa when

wearing a face covering. According to the United States Department of Labor, OSHA:

Human beings must breathe oxygen to survive, and begin to suffer adverse health
effects when the oxygen level of their breathing air drops below 19.5 percent
oxygen. Below 19.5 percent oxygen, air is considered oxygen-deficient. At
concentrations of 16 to 19.5 percent, workers engaged in any form of exertion can
rapidly become symptomatic as their tissues fail to obtain the oxygen necessary to
function properly. Increased breathing rates, accelerated heartbeat, and impaired
thinking or coordination occur more quickly in an oxygen-deficient environment.
Even a momentary loss of coordination may be devastating to a worker if it occurs
while the worker is performing a potentially dangerous activity, such as climbing a
ladder.

Fairfax, Richard E, OSHA Director, April 2, 2007 Osha Interpretation Letter.

(https://www.osha.gov/laws-regs/standardinterpretations/2007-04-02-0) (internal citations,

3
brackets, and ellipses omitted). In addition, the “rulemaking record for the Respiratory Protection

Standard clearly justifies adopting the requirement that air breathed by employees must have an

oxygen content of at least 19.5 percent. A lesser concentration of oxygen in employees’ breathing

air could endanger them physiologically and diminish their ability to cope with other hazards that

may be present in the workplace.” Id. Perhaps most important, and equally alarming: “Breathing

air containing less than 6 percent oxygen produces convulsions, then apnea (cessation of

breathing), followed by cardiac standstill. These symptoms occur immediately. Even if a worker

survives the hypoxic insult, organs may show evidence of hypoxic damage, which may be

irreversible.” Id. (Emphasis added.)

6. In addition to studying the OSHA regulations on acceptable and impermissible

oxygen levels, Plaintiffs and their counsel have consulted with a litany of doctors, scientists, and

other medical professionals, all experts in their respective fields, who are prepared to present

testimonial and demonstrative evidence to the Court on the issue of the harm that requiring face

coverings – via the Tulsa Mask Mandate – is causing to Tulsa’s citizens and visitors. These experts

include, but are not limited to, one or more of Plaintiff Dr. Zoellner, Dr. James Meehan, Dr. Judy

Mikovitz, Dr. Bryan Ardis, Dr. Chad Edwards, and bestselling nutrition and health expert, KC

Craichy, among others

7. Presumably realizing the harmful effects of – or, more appropriately, the abject

irrelevance of – face coverings, the Oklahoma State Board of Cosmetology and Barbering and the

Advisory Board on Massage Therapy do not require masks for “cosmetology and barbering related

establishments and schools,” stating: “Masks-Establishment employees/workers/booth renters

etc.: In the Governor’s PHASE 3 plan, Mask (sic) are not required, however; protecting your

health and safety as well as the clients, should be priority.” Oklahoma State Board of Cosmetology

4
and Barbering and the Advisory Board on Massage Therapy, Safety Guidelines for reopening

Barber and Cosmetology Salons, REVISED FOR PHASE 3, dated June 1, 2020, attached to this

Complaint as Ex. B (emphasis added). Yet, for some undisclosed reason, and it cannot possibly

be a good one, Tulsa requires its citizens and visitors to wear what are now clear to be dangerous

and hazardous face coverings, as far as health is concerned. Put another way, face coverings are

dangerous.

8. These United States, including the states themselves and their municipalities, are

governed by the Constitution of the United States of America, which is not an optional, fair-

weather document that applies in some instances but not in other instances. It applies all the time,

in all instances, and in its barest and most rudimentary form, it guarantees freedom. It gives its

citizens inalienable rights. With that said, it is not unbounded, and the wisdom of the drafters of

the Constitution realized and understood that to function properly, government – and the rights of

the people – have to have boundaries. For instance, while the Constitution guarantees freedom,

there are limits. It is undisputed and universally accepted that the Constitution does not give us

the right to commit murder, or the right to commit other crimes, and imposing these limitations is

largely left to the states (or to the people), in the Tenth Amendment of the Constitution, which

provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it

to the States, are reserved to the States respectively, or to the people.” (Emphasis added.) This is

what’s known as the police power, which gives the power to the states (or to the people) to regulate

for the health, safety, and welfare of its citizens.

9. However, the power accorded to the states is not absolute, and there are limits. For

instance, where, as here, the Defendants are attempting to regulate the fundamental rights of

protection of citizens against unreasonable seizures of their person (the Fourth Amendment), due

5
process (the Fifth Amendment and the Fourteenth Amendment), the rights reserved to the people

(the Ninth and Tenth Amendments), and the right to refuse unwanted medical treatment, the Tulsa

Mask Mandate has to be “narrowly tailored to achieve a compelling government interest” to

withstand constitutional muster under the “strict scrutiny” test on constitutionality. And indeed,

the right to refuse unwanted medical treatment, such as wearing a face covering, is a fundamental

right reserved to the people by the Constitution: “Everyone, regardless of physical condition, is

entitled, if competent, to refuse unwanted life saving medical treatment . . . .” Vacco v. Quill, 521

U.S. 793, 800 (1997). According to the National Institute of Health’s website:

Public health programs that are based on force are a relic of the 19th century; 21st-
century public health depends on good science, good communication, and trust in
public health officials to tell the truth. In each of these spheres, constitutional rights
are the ally rather than the enemy of public health. Preserving the public’s health
in the 21st century requires preserving respect for personal liberty.

Wendy K. Mariner, George J. Annas, and Leonard H. Glantz, Jacobson v. Massachusetts: It’s Not

Your Great-Great-Grandfather’s Public Health Law (April 2005),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/.

10. The warning and limitations label on the packing for the masks themselves

demonstrates how severe the health issues are associated with wearing masks. To wit, one

“approved” mask purchased at a Tulsa CVS had the following warning and limitations label on its

packaging:

6
Two warning and limitations – numbers 2 and 3 – are of particular note, respectively: “Before

using this mask, consult an Industrial Hygienist or Occupational Safety Professional to determine

the suitability for your intended use.” It does not say consult a doctor or virologist. It goes on to

say: “Use only in adequately ventilated areas containing sufficient oxygen to support life. Do not

use this mask when oxygen concentration is less than 19.5%.” (Emphasis added.) Plaintiffs tested

the oxygen levels inside the mask while wearing them and within seconds, the oxygen level

dropped below 19.5%; therefore, by the mask manufacturer’s own warning, the mask should not

be warn under those circumstances.

11. In light of the foregoing, what is the science behind wearing face coverings in

Tulsa? Did the Defendants consider the harm that face coverings cause, such as decreased oxygen

level intake? Did the Defendants consider the increased harm to the public at large stemming from

not only allowing, but requiring, face coverings, when face coverings have been proven increase

the level of sickness in the community due to prolonged daily oxygen deprivation? Did the

Defendants consider the likelihood of crimes perpetrated by masked criminals or criminals

otherwise wearing face coverings, like bank robberies? See cf. Claudia Harmata, Florida Sheriff

Bans Deputies, Visitors from Wearing Masks amid State’s Record COVID-19 Deaths, People

(August 12, 2020), https://people.com/health/florida-sheriff-bans-deputies-from-wearing-face-

masks-as-state-set-new-daily-record-for-covid-19-cases/?utm_medium=browser&utm_ source=

people.com&utm_content=20200812&utm_campaign=634093&fbclid=IwAR2EuSgjd0I5K76se

7s8PVM8cmM0Vw6g4UzYyw0r2_PcHV8RUPWJjPtZ-_4. Did the Defendants consider that

according to several sources, including Doctor and Senator Rand Paul, when referring to the

COVID-19:

The vast majority of people to get this are asymptomatic, or mildly

symptomatic . . . . If you look at under age 18, the mortality rate’s about one in a

7
 million, if you look at age 18-45, the mortality rate’s about 10 in 100,000. Above
that it increases, but interestingly, it is still pretty small, and the vast majority –
even people up to 65 years of age, it may well be between 95 and 99 percent have
a very mild case of this. So I’m not saying it’s a benign disease, people do get sick
and die from this. But your chances are good. We shouldn’t live in fear forever.
We should take normal precautions, we should assess the risks. People who are
older should take more precautions, but we shouldn’t, you know, cover the faces of
our children and say you’re gonna have to live your whole life with your mask on.
We shouldn’t do that, and the government definitely shouldn’t mandate it.

Rand Paul, https://www.bitchute.com/video/YvzF5iJMlXwW/ (last checked August 13, 2020)

(emphasis added).

12. The public record for the hearing on the Tulsa Mask Mandate is available in video

form online at https://cityoftulsa.viebit.com/player.php?hash=oNQMWIFTrsSI#. Plaintiffs

challenge Defendants to point to any evidence introduced at the hearing that Defendants believe

to be objective, offering views on all sides of the face coverings issue. This would include

discussing and reviewing, for example, evidence that speaks to the effectiveness of face coverings

in stopping the spread of the COVID-19, the ineffectiveness of face coverings stopping the spread

of COVID-19, the potential of face coverings actually increasing the spread of COVID-19, the

harm caused to the human body by wearing face coverings, the survival rate of persons infected

with COVID-19, and the ways that COVID-19 spreads, or any other relevant, objective, and

competing evidence. Did Defendants develop a plan on how to educate the public on how to wear

a face covering, since Defendants found it necessary to mandate the wearing of face coverings?

Was Tulsa City Council Chairman Ben Kimbro actually wearing the mask properly to stop the

spread of COVID-19 while conducting the July 15, 2020 hearing on the Tulsa Mask Mandate in

the image below?

8
Or Doctor Fauci at a baseball game? Or Doctor Birx while speaking at a White House
Press Conference?

If masks are so critical to stop the spread of COVID-19, then why is it acceptable for Doctors Fauci

and Birx to remove them while everyone else has to wear them? It is because COVID-19 is not

as dangerous or transmissible as once thought, and because face coverings are pointless in this

context. Any response other than that simply has zero credibility. Indeed, on or about March 8,

2020, during an interview on 60 minutes, Dr. Fauci unequivocally stated, without qualification:

When you’re in the middle of an outbreak, wearing a mask might make people feel
a little bit better, and it might even block a droplet, but it is not providing the perfect
protection that people think that it is. And often, there are unintended
consequences. People keep fiddling with the mask and they keep touching their
face.
(https://www.youtube.com/watch?v=PRa6t_e7dgI; last visited August 16, 2020.). In light of the

foregoing, and in light of the fact that face coverings harm people who wear them, there is no

scientific or medical justification to mandate wearing face coverings.

13. Now, in spite of the overwhelming evidence that face coverings harm the people

who wear them by depriving those people of the oxygen levels they need to live – which is

presumably why Chairman Ben Kimbro is wearing it in such a way so that he can breathe – even

if the Court finds to the contrary, the Tulsa Mask Mandate remains, and always will be,

unconstitutional under these circumstances. This is because, as the evidence will show, the

recovery and survival rate of those infected with COVID-19 ranges from 95% to over 99%. How

9
can any regulation purporting to justify something as draconian, far reaching, invasive, and

detrimental to health as the Tulsa Mask Mandate be in place? How can the Tulsa Mask Mandate,

where the disease it is seeking to prevent or slow or retard the spread of (and the effectiveness of

face coverings on transmission is in and of itself the subject of intense scientific and medical

debate), be relevant or persuasive when the survival rate is as high as over 99%? Nearly everyone

who contracts the disease survives, and wearing the mask causes the healthy to become sick.

14. Even more, Plaintiffs will offer testimony that there are now treatments that are

effective, so effective in fact that the patients put on those treatments recover at nearly 100%,

which is not surprising because the survival rate generally is nearly 100% anyway. Those

treatments include the use of FDA approved budesonide (administered with a nebulizer), and FDA

approved hydroxychloroquine with zinc, among others. In light of this, there is zero scientific or

medical justification for requiring anyone to wear a face covering, and thus, the Tulsa Mask

Mandate cannot possibly be justified as a valid exercise of police power under the Tenth

Amendment. Therefore, the Tulsa Mask Mandate is unconstitutional, and should be invalidated

and repealed, full stop.

15. Despite the mainstream media’s fear mongering narrative, there is no

constitutional, medical, or scientific justification for the Tulsa Mask Mandate. The fact that what

has been referred to as a “war” began with this virus in March 2020; objectively, when one

considers the facts we have today, the Tulsa Mask Mandate cannot be justified and continues to

be unconstitutional.

16. And the National Institute of Health recognizes the wisdom of the Constitution, and

the resulting regulatory process, in this respect:

History teaches that, in time of war, we have often sacrificed fundamental freedoms
unnecessarily. The Executive and Legislative Branches, reflecting public opinion

10
 formed in the heat of the moment, frequently have overestimated the need to restrict
civil liberties and failed to consider alternative ways to protect the national security.

Wendy K. Mariner, George J. Annas, and Leonard H. Glantz, Jacobson v. Massachusetts: It’s Not

Your Great-Great-Grandfather’s Public Health Law (April 2005),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/ (citing Brief Amicus Curiae Fred

Korematsu in Support of Petitioners, in Odah v United States, No. 03-334, Rasul v Bush, No. 03-

343, and Hamdi v Rumsfeld, No. 03-6696, in the Supreme Court of the United States, at 3–4).

17. The Plaintiffs and the citizens of Tulsa at large have suffered the loss of

fundamental freedoms, the loss of jobs, and now a lack of oxygen from the “heat of the moment”

decisions by the Tulsa leadership. The “heat of the moment” way of making decisions has to be

over; the science now shows that COVID-19, at least as it relates to children, is less deadly than

the flu: “We know that the risk of the disease is extremely low for children, even less than that of

seasonal flu. We know that the harms of locking out the children from school are enormous, and

we also know, as we all would agree, that educating America’s children is right at the top of the

list for our nation’s priorities.” Dr. Scott Atlas making remarks at the White House on COVID-

19 and reopening schools. (https://twitter.com/SWAtlasHoover/status/1293998323196506112

?s=20; last viewed August 16, 2020.)

18. Notwithstanding the updated science and that COVID-19 is less dangerous than the

seasonal flu, at least for children, unconstitutional decisions are still being made – or persist –

without appropriate scientific and medical justification, or that even make sense, thus eroding trust

in the Defendants so much so that Plaintiffs had no other choice but to file this lawsuit. To that

end, Plaintiffs assert the claims and causes of action below against the Defendants, each forming

the legal and factual basis and other support for the Court to invalidate and repeal the Tulsa Mask

Mandate immediately. Therefore, the Court should unapologetically do so.

11
 19. And in so doing, the Court would not be alone, and indeed, there is substantial

support locally (and beyond) for repealing the Tulsa Mask Mandate, support from Oklahoma

businesses and individuals alike. These businesses and individuals include, but are not limited to

(used with permission): John Scott McElroy, Amanda Jean McElroy, Royal Valet Tulsa LLC,

S&K Group LLC dba Autoflections, Elephant in the Room Men’s Grooming Lounge, the

Thrivetime Show, Make Your Life Epic, Z66AA.COM, DRZOELLNER.COM,

AtoZMEDICAL.COM, Z’s Leaf, Regent Bank, ZZZ’s Sleep Center, Amber Allen, Devra

Anderson Sharp, E’Lena Ashley, Joan Auxer, Nedra Babcock, Jordan Bailey, Cherie Becraft, John

Belie, Angie Bowker-Brant, Wynetta Bundy, Laura Burkhart, Bambi Cherry, Tony Cieslak, Mike

Cole, Cole’s Rental, Mark Byers, Art Curtis, Randy Curtis, Lori Vaughan Curtis, Cathy Duke,

Alicia Fisher, Daniel Fisher, Kauleen Fisher, Shaun Fisher, Daniel Housley, Land Run Brands,

Jessica Folsom, Kenneth Forgey, Erik Freie, Christy Freie, Norbert Gallagher, Shannon Gallagher,

Roberto Garcia, Brittany Garcia, Leslie Hildabrand, Ambience Salon, Josh Gerig, Cathy Hampton,

Daisy Haro, Russ Harrison, Rebecca Harrison, Kevin Hayes, Andrea Hayes, Herb Heiny, Kristy

Heiney, John Henley, Kristy Henly, Mathew John Roy Henke, Legacy Custom Fence, Romie

Henry, Samuel Hess, Jeff Howard, Cheryl Johnson, Klage Kaebel, Brooke Kaebel, John Kelly,

John Knippers, Carolyn Knippers, Tricia LaCount, Leigh Lamkin, Kyle Lane, Crystal Lawmaster,

Kenneth Lufkin, Jr., Aaron Archambo, Archambo Financial Advisors, Mike Newcomb, Eggberts

Restaurant, Paul Hood, Hood & Associates CPAs PC, Gregor Mapherson, Casey Macpherson,

Lottie Magdaleno, Alan McBroom, Jessica McCargar, TJ McCormack, James Meehan, Cathy

Meehan, Robert Mitchell, Mark Montgomery, Katy Morrison, Michael Morrison, Gary Murphy,

Rich Niles, Nicole Nixon, Tyler Nixon, Avery Phibbs, Alex Phibbs, Dana Phillips, Marie Pidgeon,

Lisa Primeaux Lotz, Dustin Reif, Danielle Reif, Debbie Robertson, Brianne Ross, Nikki

12
Rottmayer, Gerald Schelling, Gina Schelling, Eric Schlutter, Kristi Schlutter, Melissa Schupp,

Reshawnda Sexton, Marie Sexton, Lindsey Shelton, Reverend Bill Shepard, Anna Taber, Holly

Tamer, Donna Tauchor, Casey Teague, Holli Thomason-Blackwell, Carolyn Tolliver, Jill

VanTrease, Terri Vivion, Larry Ward, Mikah Washington, Mike Webster, A Plus Firearms, GEI

Utility Contracting, Levi Gable, Dan Knapp, Affordable Insulation, Master Machine, Nace

Roberts, and Georgdan Roberts, Wayne Thrash, and Thrash Mechanical.

THE PARTIES

20. Plaintiff Dr. Robert Zoellner owns and operates several businesses in Tulsa,

including, but not limited to, Z66AA.COM, DRZOELLNER.COM, AtoZMEDICAL.COM, Z’s

Leaf, Regent Bank, and ZZZ’s Sleep Center.

21. Plaintiff Clay Clark owns and operates at least two retail businesses in Tulsa, under

the name “Elephant in the Room,” one with an address at 1730 S. Boston Ave, Tulsa, Ok 74119,

and another at 8931 S. Yale Ave N, Tulsa, OK 74137.

22. Plaintiffs James J. DeCristofaro, Esq., Aaron A. Antis, Debbie L. Antis, Stephen

N. Currington, and Jason Dane Malik Beasley have residences in Oklahoma and frequently visit

Tulsa businesses.

23. Defendant George Theron Bynum IV is the Mayor of Tulsa, and upon information

and belief, has an office at 175 E 2nd St, Tulsa, OK 74103.

24. Defendant Bruce Dart is the Executive Director of the Tulsa Department of Health,

and upon information and belief, has an office at the James O. Goodwin Health Center, 5051 S

129th E Avenue, Tulsa, OK 74134.

25. The Tulsa City Council, upon information and belief, has its principle office at 175

E 2nd St. Fl 4, Tulsa, OK 74103.

13
 26. The City of Tulsa, upon information and belief, has its principle office at City Hall,

175 E 2nd St. Fl 2, Tulsa, OK 74103.

27. The Tulsa Department of Health, upon information and belief, has its principle

office at the James O. Goodwin Health Center, 5051 S 129th E Avenue, Tulsa, OK 74134.

JURISDICTION AND VENUE

28. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 2201 and 28

U.S.C. § 1343. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).

ADDITIONAL BACKGROUND

29. The Tulsa Mask Mandate was adopted by the Tulsa City Council on July 15, 2020,

and approved by the Mayor on July 16, 2020.

30. The Tulsa Mask Mandate contains the following findings of fact, among others:

WHEREAS, the City of Tulsa is charged with the solemn responsibility of

protecting the public peace, health, order, morals, and safety, and promoting the
general welfare of the City of Tulsa and its inhabitants;

WHEREAS, on March 15, 2020, the Governor of the State declared an emergency
caused by the impending threat of COVID-19 to the people of this State and the
public’s peace, health and safety, which remains in effect today; and

WHEREAS, on Tuesday, March 17, 2020, the Mayor of the City of Tulsa, issued
Executive Order 2020-02 declaring a civil emergency in response to the COVID-
19 pandemic, which poses an imminent threat to health, safety and welfare in the
City of Tulsa.

31. The Tulsa Mask Mandate also discusses COVID-19 positive test results and

hospitalizations – but not deaths – the recommendations of the United States Centers for Disease

Control and Prevention, the joint effort between Defendants George Theron Bynum IV and Bruce

Dart, and refers to a finding deeming the Tulsa Mask Mandate “necessary for the protection of the

public health and safety of the City of Tulsa and its inhabitants to prevent the introduction and

14
spread of the contagious disease COVID-19 preserve (sic) the peace, and to provide civil defense

and emergency functions.”

32. The Tulsa Mask Mandate states that: “Except as otherwise provided herein,

persons located within Public Service Areas of Places of Public Accommodation or an Educational

Building are required to wear face coverings at all times when present therein.” It continues:

“Except as otherwise provided herein, persons in any Public Setting wherein social or physical

distancing cannot be maintained are required to wear face coverings.”

33. The Tulsa Mask Mandate also lists the following exemptions: persons who the

Centers for Disease Control and Prevention say should not wear a face covering; children under

18; restaurant patrons while eating or drinking; people exercising in communal spaces; setting

where it is not practical to wear the face covering, like a dentist’s office; occupants in a personal

vehicle; private homes; and offices where physical distancing cannot be maintained.

34. Importantly, the Tulsa Mask Mandate does not discuss the scientific facts that

COVID-19 transmits largely if not exclusively via person-to-person contact (not in airborne

particles), the survival rate for those who contract COVID-19 being nearly 100% for some age

groups and 95%-99% for others, or the existence of the unambiguously proven – in actual medical

practices, on actual COVID-19 patients – effective treatment of COVID-19 by FDA approved

budesonide (administered with a nebulizer) or FDA approved hydroxychloroquine and zinc

treatments. In other words, the Tulsa Mask Mandate maintains the premise upon which the

lockdown was originally based in March 2020, which has since, as the evidence Plaintiffs intend

to present, materially changed for the better, rendering any health, safety, or welfare justification

or rationale for having the Tulsa Mask Mandate obsolete, irrelevant, and non-existent. Thus the

Tulsa Mask Mandate is unconstitutional.

15
 35. Many if not all Tulsa retail businesses have signs that say masks are required for

entry. These photos below are an example of Tulsa businesses requiring masks for entry: Jimmy

John’s at 9168 S. Yale Ave in Tulsa, Staples at 10302 East 71st St in Tulsa, and Whole Foods at

9136 S. Yale Ave in Tulsa. Make no mistake, these signs are the direct result of the Tulsa Mask

Mandate by the Defendants, and the Whole Foods sign specifically so states: “To comply with

local executive order, all customers are required to wear a covering over their nose and mouth at

all times while inside our store.” (Emphasis added.)

COUNT I
(Tulsa Mask Mandate – Unconstitutional – Violates the Tenth Amendment)

36. Plaintiffs incorporate each and every allegation set forth above and below as if fully

set forth herein.

37. As previously stated, the Tenth Amendment provides: “The powers not delegated

to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”

38. The Tulsa Mask Ordinance violates the Tenth Amendment because it seeks to

regulate the fundamental right of refusing medical treatment by requiring persons to wear face

16
coverings as set forth above, but it is not narrowly tailored to achieve any compelling government

interest. The Tulsa Mask Ordinance, by requiring people to wear face coverings, harms humans.

How can harming people by depriving them of oxygen necessary to live and function possibly be

a defensible or valid compelling government interest?

39. The Tulsa Mask Mandate has no real or substantial relation to protecting public

health and in fact, harms the public, who is forced to wear face coverings in order to comply with

the Tulsa Mask Mandate.

40. The Tulsa Mask Mandate is beyond all question, a plain, palpable invasion of rights

secured by the fundamental law – the Constitution.

COUNT II
(Tulsa Mask Mandate – Unconstitutional – Violates Equal Protection Clause)

41. Plaintiffs incorporate each and every allegation set forth above and below as if fully

set forth herein.

42. The Equal Protection clause is found in the Fourteenth Amendment, which

provides: “No State shall make or enforce any law which shall . . . deny to any person within its

jurisdiction the equal protection of the laws.”

43. The Tulsa Mask Mandate applies differently to people who are exempt than it does

to people who are not exempt, and therefore does not treat everyone equally, and violates the equal

protection clause.

44. The Tulsa Mask Mandate has no real or substantial relation to protecting public

health and in fact, harms the public, who is forced to wear face coverings in order to comply with

the Tulsa Mask Mandate.

45. The Tulsa Mask Mandate is beyond all question, a plain, palpable invasion of rights

secured by the fundamental law – the Constitution.

17
 COUNT III
(Tulsa Mask Mandate – Unconstitutional – Violates Ninth Amendment)

46. Plaintiffs incorporate each and every allegation set forth above and below as if fully

set forth herein.

47. The Ninth Amendment provides: “The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others retained by the people.”

48. The Ninth Amendment is oft forgotten and infrequently applied. The right to wear

or not wear face coverings, eye coverings, ear coverings, or hand coverings while in public is a

fundamental right, and if it’s not, it has to be. Is a government mandate requiring wearing visors

to protect against skin cancer a proper exercise of police power? Or gloves when it’s cold outside

to prevent frost bite? Or ear coverings at a rock concert playing music loudly enough to damage

hearing?

49. The Tulsa Mask Mandate has no real or substantial relation to protecting public

health and in fact, harms the public, who is forced to wear face coverings in order to comply with

the Tulsa Mask Mandate.

50. The Tulsa Mask Mandate is beyond all question, a plain, palpable invasion of rights

secured by the fundamental law – the Constitution.

COUNT IV
(Tulsa Mask Mandate – Unconstitutional – Violates Due Process)

51. Plaintiffs incorporate each and every allegation set forth above and below as if fully

set forth herein.

52. The Fifth Amendment and the Fourteenth Amendment provide that no person shall

be deprived of life without due process of law.

18
 53. Humans need oxygen to live, masks deprive people of oxygen, and therefore, masks

take away life without due process.

54. The Tulsa Mask Mandate has no real or substantial relation to protecting public

health and in fact, harms the public, who is forced to wear face coverings in order to comply with

the Tulsa Mask Mandate.

55. The Tulsa Mask Mandate is beyond all question, a plain, palpable invasion of rights

secured by the fundamental law – the Constitution.

COUNT V
(Tulsa Mask Mandate – Unconstitutional – Unreasonable Seizure)

56. Plaintiffs incorporate each and every allegation set forth above and below as if fully

set forth herein.

57. The Fourth Amendment provides: “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be seized.”

58. The Tulsa Mask Ordinance, since it requires the wearing of a face covering, is an

unreasonable seizure of the person.

59. The Tulsa Mask Mandate has no real or substantial relation to protecting public

health and in fact, harms the public, who is forced to wear face coverings in order to comply with

the Tulsa Mask Mandate.

60. The Tulsa Mask Mandate is beyond all question, a plain, palpable invasion of rights

secured by the fundamental law – the Constitution.

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 COUNT VI
(Tulsa Mask Mandate – Unconstitutional – Void for Vagueness)

61. Plaintiffs incorporate each and every allegation set forth above and below as if fully

set forth herein.

62. The Constitution requires criminal law to state explicitly and definitely what

conduct is punishable; a statute is void for vagueness if it fails to do so.

63. A statute is similarly void for vagueness if a legislature’s delegation of authority to

judges or administrators is so extensive that it would lead to arbitrary prosecutions.

64. The Tulsa Mask Mandate, by its terms, is part of the penal code, Title 27, Tulsa

revised ordinances, Chapter 4, “Offenses against the Person,” and adds Section 409, entitled: “Face

Covering and Social Distancing During COVID-19 Pandemic Civil Emergency.”

65. The Tulsa Mask Mandate unambiguously states in paragraph D that there “is no

specific penalty for violation of this ordinance,” yet it contradicts itself and confusingly also states:

“persons refusing to wear a face covering into a Place of Public Accommodation, Educational

Institution, or Public Setting as defined herein shall be subject to prosecution under criminal

trespass, disturbing the peace, disorderly conduct or similar offenses as circumstances warrant.”

(Emphasis added.). Is there a penalty or not? Are business owners or those in charge of Places of

Public Accommodation, Educational Institutions, or Public Settings required to report someone

who is not wearing a face covering? To deny someone entrance and thus refuse revenue if that

person is not wearing a face covering? If business owners or those in charge of Places of Public

Accommodation, Educational Institutions, or Public Settings do not report someone who does not

wear a face covering in one of those places, are those business owners or those in charge of Places

of Public Accommodation, Educational Institutions, or Public Settings aiding and abetting the

violation of the ordinance?

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 66. The Tulsa Mask Mandate does not appear to contemplate enforcement. To the

extent that it may, however, it appears to delegate enforcement to business owners or those in

charge of a Place of Public Accommodation, Educational Institution, or Public Setting. Without

question, if business owners or those in charge of Place of Public Accommodation, Educational

Institution, or Public Setting are charged with enforcing the ordinance, it is substantially

problematic for at least four reasons. First, as previously stated, are they aiding or abetting in a

crime if they do not report someone who is not wearing a face covering? Second, are they in

charge of determining whether the person not wearing a face covering falls within one of the

exemptions? Third, there is a conflict of interest putting enforcement on business owners who

have to enforce the Tulsa Mask Mandate, who at the same time are supposed to be turning away

revenue if the potential customer or client refuses to wear a face covering. Fourth, are business

owners or those in charge of Places of Public Accommodation, Educational Institutions, or Public

Settings supposed to also determine the sufficiency of the face covering? Is a paper towel

sufficient? How about lifting your collar to cover your mouth and nose – is that sufficient? What

if a store owner determines that it is, or is not?

67. The deficiencies with the Tulsa Mask Ordinance and the questions that it raises are

endless.

68. Accordingly, the Tulsa Mask Ordinance is void for vagueness because it fails to

state explicitly and definitely what conduct is punishable and what the penalty is, and because it

delegates so recklessly and incompetently that it would lead to arbitrary prosecution.

[REMAINDER OF PAGE INTENTIONALLY BLANK]

[SIGNATURES FOLLOW]

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Ex. A
Ex. B
Sherry G. Lewelling J. Kevin Stitt
Executive Director Governor

Oklahoma State Board of Cosmetology and Barbering

Advisory Board on Massage Therapy

Safety Guidelines for reopening Barber and Cosmetology Salons

REVISED FOR PHASE 3

It is acknowledged that all services within the Professional Beauty Industry (Cosmetology, Barbering, Nails and
Esthetics) carry some risk in this viral environment due to the nature of the services provided and the inability to
maintain social distancing. With that said, all licensed professionals in the Cosmetology and Barber industry have been
trained to a national standard to mitigate these risks significantly through the use of proper infection control standards
required by the Oklahoma State Board of Cosmetology and Barbering regulatory licensing rules and regulations.

The following recommendations, therefore, are enhancements to those existing rules and they address the unique
scenario presented by the COVID-19 pandemic. Therefore, in this environment we are going to follow all Universal
Precautions and assume that everyone is COVID-19 positive and take all the precautions necessary to mitigate the risk of
the spread while still performing services. (175:10-7-20)

In light of the COVID-19 pandemic, the Oklahoma State Board of Cosmetology and Barbering recommends moving
into PHASE 3. Cosmetology and barbering related establishments and schools, shall follow these guidelines in order to
protect the safety of clients and employees. The recommendations should be used in conjunction with the Boards
established rules and regulations that are currently in place.

• Appointments- Establishments can operate at full staff and accommodate more appointment clients as well as
walk in traffic, as long as they maintain social distancing guidelines. Advise clients that the salon/shop is limiting
guest inside the establishment to only those individuals that are receiving services, all other individuals should
wait outside the establishment.
• Distancing – CDC and the Oklahoma Department of Commerce guidelines require following the social
distancing. It is acknowledged that social distancing recommendations of 6 feet cannot be met in the actual
service itself, however; the following distancing measures can be instituted to reduce risk:
 Spacing between persons in the salon should be at least six feet at all times.
 Maintain social distancing guidelines within the establishment including the break room, waiting area,
classroom, or clinic/salon/shop area.
• Personal Protective Equipment-
 Masks – Establishment employees/workers/booth renters etc.: In the Governor’s PHASE 3 plan, Mask are
not required, however; protecting your health and safety as well as the clients, should be priority.
 Capes – (175:10-7-5) Each client should be draped with a clean cape. Capes should be disinfected between
every use, using a disinfectant spray or disinfectant wipe or a clean disinfectant saturated towel and allow to
set according to recommended contact time of the product used. Disinfectants can be mixed according to
directions and put in a spray bottle for use. Technicians should have several clean/disinfected capes
available at all times.
Capes should be laundered at the end of the day following the fabric recommendations.
Neck strips/towel– (175:10-7-12) Employees should use protective neck strips/towels around the neck and
under the cape of each client.
1
Sherry G. Lewelling J. Kevin Stitt
Executive Director Governor

Oklahoma State Board of Cosmetology and Barbering

Advisory Board on Massage Therapy

 Hand Hygiene- (175:10-7-8) Proper hand hygiene is documented to be an essential action to reduce the
spread of viral illness. Washing hands with soapy, warm water, for a minimum of 20 seconds will be required
by employees between every client service and as frequently as possible, but always after eating, smoking
and using the restroom.
• Disinfection – (175:10-7-6)
 All salons/shops should be thoroughly cleaned and disinfected.
 Use disinfectants that are EPA –registered and labeled as bactericidal, virucidal and fungicidal. No product
will be labeled for COVID-19 yet, but many will have human coronavirus efficacy either on the label or
available on their website. The EPA has approved any product that has tested as effective against human
coronavirus. If in doubt of the effectiveness, check the EPA website.
 Disinfectant for immersion of tools, must be mixed daily and replaced sooner if it becomes contaminated
throughout the workday. Disinfectant only works on a clean surface so clean all surfaces and tools with hot
soapy water, or cleaning wipes (if using wipes, be sure to cover surface thoroughly) before disinfecting.
 Contact time on label must be observed for disinfectant to work. Contact time refers to how long the
disinfectant is visibly wet on the surface allowing it to thoroughly destroy all the pathogens.
 Disinfectants used for immersion must be changed daily or sooner if it becomes contaminated (ex:
hair/debris floating in solution or cloudy solution.)
 Disinfection is for hard non-porous surfaces, glass metal and plastic.
 Porous/soft surfaces cannot be disinfected and must be used only one time and then discarded (tools such
as cardboard files, buffers, drill bits etc.)
 Launder all linens, towels drapes, capes and smocks in hot soapy water and dry completely at the warmest
temperature allowed. (till they are hot to the touch). Store clean linens in an enclosed cabinet or closed
container. Store all used/dirty linens in an enclosed container.
• Reception area – (175:10-7-4)
 Wipe down all seats and tables. Cloth chairs cannot be properly cleaned and disinfected, using a plastic
cover should be considered.
 Disinfection of high touch areas including, but not limited to:
Door handles on main entrance and restrooms
Restrooms
Reception desk
Point of sale equipment
Stations (including foot/nail drying stations)
Displays and display products
 Employees should frequently wash their hands after the using the phones, computer, cash register and/or
credit card machine. Wipe these surfaces between each use.
 Clean and wipe all door handles and other surfaces that are regularly touched by clients and staff with
disinfectant wipes.
 Restrooms – (175:10-7-19)

2
Sherry G. Lewelling J. Kevin Stitt
Executive Director Governor

Oklahoma State Board of Cosmetology and Barbering

Advisory Board on Massage Therapy

 Clean and disinfect ALL restroom surfaces including floors, sinks and toilet bowls. Store paper products in a
closed cabinet. Place trash can near the door or within reach of the door. Remove anything that does not
have to be in the restrooms. Restroom are required to be supplied with liquid soap and paper towels. No
cloth towels.
• Shampoo Bowls- (175:10-7-4)
 Clean and disinfect all bowls, hoses, spray nozzles, faucet handles, shampoo chairs and arm rests. Wipe
down all back-bar products and shelves. Discard and replace any products that have not been stored in a
closed container.
• Salon/Shop/Clinic Areas – (175:10-7-4)
 Clean and disinfect all work area surfaces. Clean and disinfect chairs, head rest, and arm rests. Clean and
disinfect all reusable tools and store in an airtight closed container. Clean and disinfect all appliances,
sheers, clippers, clipper guards, clippies, rollers, combs, brushes, rolling carts and any other items used in
connection with servicing clients.
 Check to make sure all products such as lotions, creams, waxes and scrubs have always been in a closed
container, if not you must discard and replace.
 Remove and discard all single use tools such as paper files, drill bits and buffers, that have already been
used.
 Clean and disinfect all linen hampers. Clean and disinfect trash containers and replace trash liners daily or
more often as needed. Trash Containers should have a lid that can be closed.
• Pedicure Bowls- (175:10-7-30)
 Remove all parts that can be removed.
 Clean all removed parts with soap and water, rinse in clear water and then immerse into properly diluted
disinfectant for full recommended contact time.
 Scrub bowl with soap and water and replace removed parts to bowl.
 Rinse in bowl with clean water.
 Fill bowl again with clean water and proper amount of disinfectant and let stand for proper contact time
requirements.
 If your bowl has jets, allow the jets to run for a full 10 minutes with disinfectant solution.
• Treatment rooms- (175:10-7-5)
 Clean and disinfect all surfaces such as, chairs, tables, electrical appliances (don’t forget the cords).
 Clean and disinfect all linens and store in a closed container/cabinet.
 Clean and disinfect all linen hampers. Clean and disinfect trash containers and replace trash liners daily or
more often as needed. Trash Containers should have a lid that can be closed.
 Empty all wax pots and disinfect before refilling them with new wax. Single use applicators must be used
only one time and then discarded after each use. (do not double dip).
 The above guidelines are the minimum requirements at this time.
Establishment owners/managers may implement other safety protocol procedures to support these
guidelines.