On the September 15 Berkeley City Council agenda, comes what’s sure to be an eye-opening proposal to issue citations for anyone who refuses to comply with the city’s face-covering requirements to stop the spread of the Coronavirus. Fines will be up to $100 for a first-time offense, increasing to up to $500 for repeat violations. Berkeley City Council Members say that while their community has generally done an excellent job using masks, complacency, and a lack of vigilance risk bringing back a new wave of cases, which some believe are threatening the progress Berkeley has made to date, and stressing the importance to abide by safe social distancing with face coverings.
The summary and background of the proposed legislation read like this:
The Berkeley City Council appoints a local public health officer to enforce provisions of the California Health and Safety Code related to public health within the City, and in particular, provisions related to the control of infectious disease. The City’s Health Officer has authority to issue orders to enforce isolation or quarantine measures, or to close or restrict public assemblies or gatherings, require evacuation, examination, inspection, vaccination, decontamination, disinfection, property destruction or commandeering, and to compel assistance in the provision of public health services.
Under state law, violation of a Health Officer order is a misdemeanor. However, state law provides no civil mechanism for the enforcement of local health officer orders.
The proposed ordinance seeks to create an alternative means to enforce orders of the Berkeley Health Officer through an administrative citation process. Any person violating a Health Officer order could be subject to a civil penalty of up to $100 per day for the first violation under the City’s existing administrative citation policy, with penalties increasing for repeat violations.
Even with passage of the Ordinance, City staff would continue to focus primarily on achieving voluntary compliance with Health Officer orders. However, the availability of a civil enforcement mechanism would provide City Code Enforcement, Environmental Health, and other personnel a more practical enforcement mechanism in the event that education and outreach fail to achieve acceptable public health outcomes.
In order to mitigate the potential for an unfair impact on people suffering financial hardship, the proposed ordinance would include a provision that allows the City Manager to waive administrative penalties upon demonstration of financial hardship.
Since March 17, 2020, City of Berkeley Public Health Officer Dr. Lisa Hernandez has issued a series of orders seeking to limit the spread of COVID-19 within the City, including orders limiting public gatherings and activities (“Shelter in Place”), requiring the wearing of face coverings, and regulating certain licensed care facilities.4 The Health Officer has broad authority to issue orders to prevent the spread of communicable disease under the California Health and Safety Code.
In most cases, Berkeley residents have voluntarily complied with the requirements of the Health Officer orders. Voluntarily compliance is reinforced through education and outreach conducted by the Public Health Division, Emergency Operations Center staff, or other City employees.
The proposed ordinance addresses the relatively infrequent instances in which education and encouragement are insufficient to achieve compliance with the Health Officer’s orders. In those cases, the City’s enforcement options are presently limited to criminal prosecution under the Health and Safety Code or, in cases of violations by a business, an order shutting down the business to correct violations.
The proposed ordinance would provide the Health Officer or their designee an additional and more effective mechanism for addressing non-compliance with Health Officer orders. The proposed ordinance would authorize the Health Officer or their designee to issue administrative citations to persons or entities who violate a Health Officer order, thereby providing a civil remedy for correcting noncompliance by individuals and businesses.
Administrative citations would be issued under the existing provisions of Chapter 1.28 of the Berkeley Municipal Code and the policies in the City’s Administrative Citation Handbook. Individuals and businesses could be cited up to $100 per day for a first-time violation, with penalties escalating to $500 per day for repeat violations.
Persons receiving citations would have the right to appeal the citation to an administrative hearing officer.7
To mitigate the potential for an unfair and disparate impact on people with low incomes, the proposed ordinance includes a provision that allows the City Manager to waive the assessment of an administrative penalty upon a demonstration of hardship. The applicant for a hardship waiver would be required to demonstrate that the condition leading to the violation of the Health Officer order has been corrected.
Staff recommends that the City Council adopt the proposed ordinance to provide the Health Officer and their designees with an effective mechanism for the civil enforcement of Health Officer orders when voluntary compliance cannot be obtained. The Ordinance would provide an efficient enforcement mechanism that avoids unnecessary criminalization of community members’ conduct and would reinforce existing education and outreach efforts surrounding COVID-19 that emphasize the importance of social distancing, the wearing of face coverings, and hygiene measures.