Milwaukee Enforcing Existing Capacity Restrictions Over Lower State Limits

Milwaukee’s decision to impose its own COVID-19 health order is poised to pay dividends for bars and restaurants in the coming weeks.

The Milwaukee Health Department will maintain much of its health order instead of completely following the latest order from Governor Tony Evers that limits capacity at most indoor establishments to 25 percent of approved limits. It says bars and restaurants with city-approved health plans should follow their plan for capacity restrictions. Other businesses should follow the state order.

The Milwaukee decision relies on an interpretation of Evers’ order, which says “Local governments may issue orders that are more restrictive than the provisions in this order.” The state’s new restriction was signed by Department of Health Services Secretary-designee Andrea Palm on October 6th and takes effect Thursday. It leaves enforcement to local agencies.

The Milwaukee Health Department, led by interim commissioner Marlaina Jackson, believes its order is more restrictive despite many businesses being allowed a greater capacity.

“After review of both orders, the City of Milwaukee Health Department has determined that the Moving Milwaukee Forward Safely Order is more restrictive than Governor Evers’ Emergency Order #3, and that all businesses and individuals within the City of Milwaukee should continue to adhere to the Moving Milwaukee Forward Safely Order,” said the health department in a statement.

Under the city’s phased Moving Milwaukee Forward Safely framework, bars and restaurants must submit 80-point health plans to the city to operate with increased capacity limits. The city has used the framework and gating criteria to increase capacity limits and permit a greater array of businesses and organizations to operate.

“Even though the Moving Milwaukee Forward Safely Order permits a larger threshold of individuals in certain places than Emergency Order #3 allows, the additional restrictions listed under the local order do more to prevent COVID-19 transmission than Governor Evers’ Emergency Order #3.

Bars and restaurants that have an approved health plan from the city can operate without capacity restrictions, but with distancing practices, under the city’s order. The health department has declined to make those health plans public.

The decision sidesteps criticism from restaurant and bar owners that the state was going to put them out of business. “RIP restaurants and the employees and their families. We had a good run. #MKECovidNumbersMuchBetterThanTheState,” tweeted Carnevor co-owner and VISIT Milwaukee board president Omar Shaikh when Evers’ announced the state order. Throughout the pandemic, many restaurant and bar owners have said that their businesses are not financially viable with substantial capacity restrictions.

The state order applies to bars, restaurants, stores and any other indoor gathering open to the public. It does not apply to private wedding ceremonies or funerals. Specific exemptions to the order are granted to child care settings, schools, colleges, health care providers, public infrastructure and transportation systems, government facilities and religious, political and other events protected by the First Amendment.

The city’s guidance does not apply to businesses in other Milwaukee County municipalities.

One day after Evers and Palm announced the state order they activated an overflow care facility to handle patients from overburdened hospitals across the state.

Milwaukee is currently under version 4.1 of its health order.

Businesses and organizations looking for clarity can email askcovid19@milwaukee.gov.