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HomeMy WebLinkAbout21-128 - Face Mask Ordinance FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING (CARRIED 4-2 LOST LAID OVER WITHDRAWN ) AS AMENDED PURPOSE: CREATE ORDINANCE TO REQUIRE FACE COVERINGS IN RESPONSE TO COVID-19 CORONAVIRUS EMERGENCY INITIATED BY: CITY COUNCIL WHEREAS, on March 18, 2020, the Common Council of the City of Oshkosh adopted Resolution #20-103 declaring a state of emergency in the City of Oshkosh as a result of COVID-19; and WHEREAS, the City of Oshkosh has broad authority to act for the health, safety and welfare of its citizens and others within its boundaries under Chapters 62, 64 and 66 of the Wisconsin Statutes and in particular Sections 62.04 and 62.11(5) of the Wisconsin Statutes; and WHEREAS, the emergency power granted to governing bodies by Wis. Stat. § 323.14(4)(a) includes the general authority to order,by ordinance or resolution, whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency; and WHEREAS, many individuals with COVID-19 may be asymptomatic or may experience a delayed onset of symptoms, during which time such individuals may transfer the virus to others; and WHEREAS, wearing a cloth face covering over both the nose and the mouth greatly reduces the risk of continued community spread of COVID-19; and WHEREAS, the Center for Disease Control and Prevention (CDC) recommends the use of cloth face coverings to prevent the spread of COVID-19 for all people 2 years of age and older in public settings and when around people who do not live in their household, especially when other social distancing measures are difficult to maintain; and FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING CONT'D WHEREAS, despite the progress and the development of vaccines, the COVID-19 virus continues to spread within the community and new and variant strains of the virus have developed which may be more contagious and spread more easily; and WHEREAS, Studies have shown that wearing a cloth face covering can prevent the spread of COVID-19; and WHEREAS, a Scientific Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 (https://www.cdc.gov/coronavirus/2019-ncov/more/masking- science-sars-cov2.h.tm.1) published by the Centers for Disease Control and Prevention (CDC) concludes: "Experimental and epidemiological data support community masking to reduce the spread of SARS-CoV-2. The prevention benefit of masking is derived from the combination of source control and personal protection for the mask wearer. The relationship between source control and personal protection is likely complementary and possibly synergistic, so that individual benefit increases with increasing community mask use. Adopting universal masking policies can help avert future lockdowns, especially if combined with other non-pharmaceutical interventions such as social distancing, hand hygiene, and adequate ventilation"; and WHEREAS, the City of Oshkosh has an interest in protecting the public health, safety, and welfare of the citizens of Oshkosh from the continued spread of COVID-19 throughout the community; and WHEREAS, an ordinance requiring face coverings to be worn by any person in a public place within the City of Oshkosh directly serves that interest by avoiding and/or reducing the further spread of COVID-19 and minimizing the strain on health care resources while enabling the continuation of essential services, businesses, and social and commercial life during the state of emergency; and WHEREAS,based upon information and input from federal, state and local public health officials the City of Oshkosh hereby determines that a face covering requirement is necessary to protect persons within the City of Oshkosh; and FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING CONT'D WHEREAS, the Common Council recognizes that there is a risk that no statewide or federal face covering requirement may be in place to protect the City of Oshkosh for the remaining duration of the COVID-19 pandemic. NOW, THEREFORE, THE COMMON COUNCIL OF THE CITY OF OSHKOSH DO ORDAIN AS FOLLOWS: SECTION 1. City of Oshkosh Ordinance: Face Coverings Required, is hereby created to read as follows: FACE COVERINGS REQUIRED (A) Within Buildings and other Enclosed Spaces. Except as otherwise specifically provided below,every person age five(5)years and older who is present in any Enclosed Space Accessible to the Public shall wear a Face Covering that completely covers their nose and mouth when another person or persons who are not members of the individual's household or living unit are present in the same room or enclosed space. Property owners, businesses, organizations or other entities owning or controlling Enclosed Space Accessible to the Public shall require every person age five (5) years and older who is present in areas subject to this ordinance to wear a Face Covering that covers their nose and mouth when another person or persons who are not members of the individual's household or living unit are present in the same room or enclosed space. (B) In or on Public Transportation or In Transit Facilities. Except as otherwise specifically provided below,every person age five(5)years and older who is driving or riding in or on Public Transportation shall wear a Face Covering that covers their nose and mouth. Owners and/or operators of any vehicle offered for Public Transportation shall require every person age five (5) years and older to wear a Face Covering that covers their nose and mouth while in or on Public Transportation. Except as otherwise specifically provided below,every person age five(5)years and older who is present in or at the Downtown Transit Center or a Transit Shelter or who is in line for Public Transportation in any outdoor area that is unable to maintain a social distance FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING CONT'D of at least six (6) feet from any other persons not within their same household unit shall wear a Face Covering that covers their nose and mouth. (At the time of adoption of this ordinance. Public Transportation is covered by an order issued by the Centers for Disease Control and Prevention effective February 1, 2021 requiring persons age two (2) years and older to wear a face mask that completely covers both the nose and mouth while awaiting, boarding, disembarking, and traveling on public transportation and while at public transportation facilities or bus stops.) Definitions For purposes of this ordinance the following definitions shall apply: "Face Covering" means a manufactured or homemade covering of cloth or other material that completely covers a person's nose and mouth and that is secure and remains affixed in place without the use of one's hands. Face Coverings shall be secured with ear straps or otherwise tied so as to prevent slipping, fanning up or gaps in coverage. Face Coverings include, but are not limited to, bandanas, medical masks, cloth masks disposable or paper masks, and scarves, provided that they are worn in such a way that completely and securely cover the person's nose and mouth. Face Covering does not include mesh coverings or coverings with holes, exhalation valves/vents or openings. "Enclosed Space Accessible to the Public" means any interior area of any structure or premises open to or used in whole or in part by the public, and to which the public customarily has access, but does not include any private residence. "Public Transportation" means public transportation in or on City Transit Department vehicles or paratransit vehicles, whether such vehicles are operated directly by the City Transit Department or under contract with a private contractor; taxis; ride-sharing vehicles; or any other vehicle for hire. "Transit Facilities" means the City of Oshkosh Downtown Transit Center and any City of Oshkosh transit shelters. FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING CONT'D Exceptions (A) Governmental Facilities. This ordinance shall not apply in governmental facilities owned or operated by United States of America, State of Wisconsin, University of Wisconsin and Fox Valley Technical College, Winnebago County, and Oshkosh Area School District facilities. Individuals are encouraged to wear a face covering but this ordinance shall not be interpreted to limit persons from registering for or exercising the right to vote within City Hall or polling places for Federal, State or local elections. (B) Public Transportation. This ordinance shall not apply in or upon Public Transportation or Public Transportation Facilities which are subject to a current order issued from the State or Federal Government. (At the time of adoption of this ordinance. Public Transportation is covered by an order issued by the Centers for Disease Control and Prevention effective February 1, 2021 requiring persons age two (2) years and older to wear a face mask that completely covers both the nose and mouth while awaiting, boarding, disembarking, and traveling on public transportation and while at public transportation facilities or bus stops.) (C) Temporary Removal of Masks Authorized. Individuals may temporarily remove their face covering under the following circumstances: 1. While eating, drinking, or sleeping 2. When communicating with an individual who is deaf or hard of hearing and communication cannot be achieved through other means 3. When, to the extent necessary, a Face Covering must be removed in order to receive services (for example certain medical and dental services) 4. When necessary to confirm the individual's identity 5. When federal or state law or regulations prohibit wearing a face covering FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING CONT'D (D) Exemptions. The following persons are exempt from the requirement to wear a Face Covering: 1) persons who are having difficulty breathing, unconscious, incapacitated or otherwise unable to remove the face covering without assistance 2) persons who have chronic upper-respiratory conditions 3) persons within work settings where a Face Covering would create a risk to the person related to their work as determined by government regulation 4) persons with medical conditions, intellectual or developmental disabilities, mental health conditions or sensory sensitivities that prevent or impair the person's ability to wear a Face Covering 5) persons engaged in exercising at a gym or other indoor facility so long as separation is at least 6 feet and the individual wears a Face Covering when not actively engaged in exercising 6) persons engaged in sporting competitions or practices at a gym or other indoor facility so long as the individual wears a Face Covering when not actively engaged in the competition or practice 7) while a single individual is giving a religious,political,media,educational, artistic, cultural, musical, or theatrical presentation for an audience, the single speaker may remove the face covering when actively speaking. While the face covering is removed, the speaker must remain at least 6 feet away from all other individuals at all times Non-Compliance Any property owner, business, organization or entity that fails to comply with this ordinance shall be referred to the Winnebago County Department of Health. Owners, businesses, organizations and other entities are encouraged to offer accommodations for those persons wishing to receive goods or services but who are unable or unwilling to abide by the requirements of this ordinance within buildings open to and accessible by the general public such as online ordering, drive thru services, pick- up and delivery. FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING CONT'D Any person who fails to comply with this ordinance may be asked to leave by any property owner, business, organization or entity. Persons refusing to leave when asked may be subject to citation for trespass or other applicable law or regulation based upon their conduct. Effective Date/Duration This ordinance shall take effect upon passage and publication and shall remain in effect until April 30, 2021 or until termination of the state of emergency in the City of Oshkosh as a result of COVID-19 declared by Resolution #20-103, whichever is earlier; unless extended or earlier terminated or modified by the Oshkosh Common Council or by passage of regulations by the United States Congress, State of Wisconsin or other entity with authority to supersede this ordinance which explicitly repeals or invalidates this ordinance, in which case this ordinance shall automatically repeal upon the superseding authority becoming effective with no further action required. In the case of regulations by the United States Congress, State of Wisconsin or other entity with authority to supersede this ordinance which do not specifically and/or explicitly repeal or invalidate this ordinance, this ordinance shall remain in effect until the date specified above,unless extended or earlier terminated by action of the Common Council. It is the intention of the Common Council that unless specifically and/or explicitly repealed, superseded or otherwise invalidated by the action of the United States Congress, State of Wisconsin or other entity, that this ordinance shall be superseded only by legislation at least as restrictive as this ordinance and only for the duration of the superseding legislation, but shall not be repealed and shall automatically become effective upon termination of the superseding legislation without further action of the Council being required. FEBRUARY 23, 2021 MARCH 9, 2021 21-103 21-128 ORDINANCE FIRST READING SECOND READING CONT'D Publication Notice Please take notice that the City of Oshkosh enacted ordinance #21-128 CREATE ORDINANCE TO REQUIRE FACE COVERINGS IN RESPONSE TO COVID-19 CORONAVIRUS EMERGENCY on March 9, 2021. The Ordinance requires face coverings for anyone age five (5) years or older in buildings and other enclosed spaces when another person or persons not a member of the same household are present. The ordinance will not apply to other governmental entities including the school district, state and federal entities which may establish their own rules. The ordinance also recognizes that face coverings in or on public transportation including GO Transit, taxi cabs and ride share services are currently required for persons age two (2) years and older under federal order, but would apply to public transportation should that federal order terminate. The ordinance allows for a number of exceptions common with State and other municipal orders including while eating and drinking; when necessary to receive certain services, persons with chronic upper respiratory or other medical or other disabilities that may prevent or impair the person's ability to wear a mask; persons engaged in exercise and individual speakers or performers. The proposed ordinance anticipates soft enforcement, with owners of businesses not in compliance referred to the Health Department for education and individual enforcement limited to those refusing to leave if asked by a business or property owner being subject to citation for trespass or other applicable violations. The ordinance becomes effective upon passage and publication and terminates on April 30, 2021. The ordinance would automatically repeal should the County, State or Federal Government adopt regulations specifically repealing or invalidating the terms of this ordinance. Should the County, State or Federal Government adopt regulations not specifically repealing or invalidating local requirements, the ordinance would be superseded for the period of the County, State or Federal regulation then remain in effect until terminated on April 30,2021 or as may be provided by further action of the Common Council. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City's website at www.ci.oshkosh.wi.us. Clerk's phone: 920/236-5011. *Bold &Italics Indicates Amendment Oshkosh TO: Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: February 10, 2021 RE: Ordinance to Require Face Coverings BACKGROUND Staff had drafted an ordinance in September 2020 pursuant to direction of the Council to require face coverings in the City of Oshkosh upon the expiration of the Emergency Order issued by the Office of the Governor requiring face masks statewide. The draft ordinance had been drafted to closely reflect the emergency order issued by the Governor to provide consistency moving forward. Prior to consideration of the draft ordinance the Governor took additional action pertaining to statewide requirements for masks and local efforts were undertaken to promote voluntary mask wearing and the draft ordinance was not brought forth for consideration at that time. Over the past several weeks the State Legislature and Governor have gone back and forth with measures at the state level related to the statewide mask mandate and other Covid provisions. The statewide mask mandate is currently in effect, the Governor having issued a new statewide executive order within hours of the legislature overriding the previous mandate on February 4, 2021. Based upon prior direction from Council, staff has continued to monitor the actions at the state, federal and county health levels and has now modified the prior draft ordinance to address certain aspects of the proposed ordinance based on state and federal actions taken and has added provisions to the draft ordinance in an attempt to address potentially superseding legislation enacted at the county, state, or federal level should the Council determine to bring forward an ordinance in anticipation of a statewide mask mandate repeal. Cily Hall,215 Church Avenue P.O. Box 1130 Oshkosh,WI 54903-1130 920,236,5000 hEtp://www.cwi.oshkosh.wi.us ANALYSIS As a preliminary matter, the ordinance uses the term "face covering" which is defined specifically to include manufactured or homemade coverings of cloth or other material that completely covers a person's nose and mouth and that is secure and remains affixed in place without the use of one's hands. The term face coverings is defined to include bandanas,medical masks, cloth masks, disposable or paper masks, and scarves,provided that they are worn in such a way that completely and securely cover the person's nose and mouth. Face Covering does not include mesh coverings or coverings with holes, exhalation valves/vents or openings or coverings that are worn in a manner that allows them to slip, fan up or have gaps in coverage. The draft ordinance would require face coverings for anyone age five (5) years or older in buildings and other enclosed spaces when another person or persons not a member of the same household are present. The draft ordinance would also require face coverings in or on public transportation including GO Transit, taxi cabs and ride share services;but creates an exception during any period public transportation vehicles and facilities are under an order from the state or federal government. The draft notes that there is a current order issued by the CDC in effect for public transportation which requires face coverings for persons over the age of two (2). Similarly to previous Governor's orders which created exceptions for the Legislature and Court Offices as equal levels of government, the proposed draft would also create an exception for other governmental entities including the school district, state and federal entities at an equal or higher level of government reserving to those entities the ability and responsibility to regulate their own facilities. The proposed draft would create a number of exceptions common with the State orders and similar orders by states and other municipalities, including excepting persons from wearing face coverings while eating and drinking, when necessary to receive certain services, persons with chronic upper respiratory or other medical or other disabilities that may prevent or impair the person's ability to wear a face covering; persons engaged in exercise and individual speakers or performers. The proposed ordinance, consistent with Council direction at prior meetings, anticipates soft enforcement, with owners of businesses not in compliance referred to the Health Department for education and individual enforcement limited to those refusing to leave if asked by a business or property owner being subject to citation for trespass or other applicable violations. Cily Hall,215 Church Avenue P.O. Box 1130 Oshkosh,WI 54903-1130 920,236,5000 hEtp://www.cwi.oshkosh.wi.us The proposed draft anticipates an effective date upon passage and publication. The draft ordinance contains a blank at this time awaiting further Council direction on a termination date. Finally, the draft ordinance has been updated to include language that would automatically repeal should the County, State, or Federal Government adopt regulations specifically repealing or invalidating the terms of this ordinance. Should the County, State, or Federal Government adopt regulations that do not repeal or invalidate local requirements and are at least as strict as the ordinance requirements,the ordinance would be superseded for the period while the County, State, or Federal regulation remains in effect. The ordinance would essentially remain unenforced or "dormant" for the period of the County, State or Federal regulation but may come back into force and effect if the superseding regulation terminates prior to the expiration date of the ordinance. If based upon all of the information received and considered by the Council, the Council determines that a face covering ordinance is a reasonable measure necessary to protect the health, safety and welfare of the community, such a legislative determination will be defended if challenged. If a challenge is filed, the City will tender defense to our insurance carrier and it is anticipated that they will defend the matter under the terms of the City's insurance policy. Respectfully Submitted, Approved: Lynn A. Lorenson Mark A. Rohloff City Attorney City Manager Cily Hall,215 Church Avenue P.O. Box 1130 Oshkosh,W1 54903-1130 920,236,5000 hEtp://www.cwi.oshkosh.wi.us