Milwaukee Enacts (Soft) Mask Mandate

The Milwaukee Common Council adopted a new mask mandate for the city on Tuesday, but it’s a substantially scaled-back version of one they imposed in 2020.

The ordinance, subject to approval from Acting Mayor Cavalier Johnson, requires anyone older than age three who is in a building open to the public to wear a face covering.

“I want to be clear to the public, and particularly our small business community, this is not the same mask ordinance as last year,” said the measure’s lead sponsor, Alderwoman JoCasta Zamarripa.

It now includes a number of exceptions, an explicit end date of March 1 and a more limited enforcement mechanism.

“There is still accountability in this order before you,” said Zamarripa to her colleagues. But instead of monetary penalties, the enforcement will be focused on license renewals.

The Milwaukee Health Department, according to the ordinance, may institute a three-step system for enforcement. A complaint could trigger a letter, with an additional complaint triggering an on-site visit or phone call. A third complaint could trigger an on-site visit and a written letter documenting a violation could be forwarded to the licenses division.

When a licensed business is before the council for renewal, the written letter could be used as a factor in renewal decisions. Violations of the 2020 mandate (which expired in June 2021) factored into council decisions to close Junior’s Cocktail Lounge and VIP Lounge in 2021.

But unlike the prior matter, which included more stringent inspections and was coupled with an emergency health order, the new order gives a lot of discretion to the health department.

“Everything is couched as ‘may’, nothing says ‘shall,'” noted Alderman Robert Bauman, whom Zamarripa credited with negotiating the more limited enforcement and expiration date.

Health Commissioner Kirsten Johnson, in a committee meeting discussing the proposal two weeks ago, said she has no intention of enforcing the mandate the same way the original measure was enforced. It involved inspectors receiving threats and tens of thousands of dollars in fines being issued to businesses.

“I don’t think it will necessarily have an impact on our burden rate… It will protect some of our employees,” said Johnson on Jan. 7 in support of the measure.

“They’ve already said they recommend people wear masks, now they’re saying they really, really recommend it,” said Bauman, giving his synopsis of the effect.

But Zamarripa and her two co-sponsors, council members Marina Dimitrijevic and Jose G. Perez, said the ordinance also gives business owners a tool they were requesting.

“We heard at public safety [committee] businesses ask for help,” said Perez. The ordinance provides backing for business owners to say the city is requiring them to impose the mandate.

“If we all had the same goal, which is to protect one another, I don’t think we would be where we are now,” said Dimitrijevic. “I can guarantee you that if we can reduce transmission we can get back to something that feels a little bit more normal.” Multiple business owners from her district testified on Jan. 7 in favor of the mandate as a backstop for their own mask requirements.

The original ordinance included exceptions for those eating or drinking, individuals with medical conditions that prevent mask wearing, individuals in settings where it is not practical (such as dental services), those whose religious beliefs prevent wearing a face covering and those who are in a situation where another law prevents wearing a face covering.

The new ordinance includes additional exceptions for performers during rehearsals or performances and individuals engaged in athletic activities.

“I can inform you that the Pabst Theater Group would need to shutter its venues and cancel all of its shows if the performers must wear masks,” wrote PTG CEO Gary Witt in an email to the council.

Witt encouraged a proof-of-vaccination approach, as he said his venues had instituted.

Bauman said he wished the health department focused on getting more people vaccinated, but did not mention a requirement.

MHD has run a number of vaccination clinics and Johnson has repeatedly pushed vaccination, but Milwaukee’s vaccination levels are still below the state average. Zamarripa noted they also vary substantially by race and that the mask order was intended to help slow the spread of the virus while vaccination rates hopefully grew.

“We watered down this so much in a quest to try to have something,” said Alderman Mark Borkowski. “We’re going to have this in effect for a month and a half, what exactly do we think we are going to accomplish?”

Noting the many borders his district shares with other municipalities, he said he wasn’t sure it would have much impact. “Let’s not kid ourselves, this is a paper tiger,” he said.

He received support on that reasoning from Bauman and Ald. Scott Spiker.

Spiker pushed for people to consider wearing N95 or KN95 masks. “I don’t want it to be lost that the type of mask matters with omicron,” he said.

The council passed the ordinance on a 12-1-1 vote, with Borkowski objecting and Spiker abstaining. Johnson, by virtue of serving as acting mayor, cannot vote and was not at the virtual meeting.

A representative of the mayor’s office did not respond to a request for comment if Johnson would sign the new ordinance. Johnson, who voted for the 2020 mandate, said on Monday that he was awaiting the outcome of any final amendments.

A Legal Challenge?

Buried in the city’s online records system with the ordinance is a cease-and-desist notice from Milwaukee resident and Tippecanoe Herbs owner Kyle Denton.

“The aforementioned orders constitute an unlawful assault (imminent harm) and trespass against man’s God-given rights, breath, and property. There are no duties or obligations (contracts) that permit such violation of God-given rights,” wrote Denton in his four-page letter. He promises to proceed with administrative, civil and criminal remedies against each of the council members and other city officials.

His claim, which cites multiple Bible verses in its justification,  inaccurately names Jeanette Kowalik as the current health commissioner (she resigned in 2020).

“I am not an expert in the law however I do know right from wrong,” wrote Denton.

Related Legislation: File 210628