Milwaukee’s Mask Ordinance Creates Confusion

Hastily prepared ordinance leaves many questions unanswered for Milwaukeeans

Last week, the Milwaukee Common Council frantically adopted a new ordinance requiring everyone in the city to wear a mask when they’re out in public — whether in a building or, in many cases, outside. The ordinance was first formally introduced on July 7th, and had been passed by the Common Council and signed by the Mayor just a week later. It officially took effect on the 16th. As with most legislation passed with such haste, Milwaukee’s ordinance leaves a lot of questions unanswered. Below we summarize what the ordinance requires, what the exceptions are to it, and what this means going forward. While we express no opinion on the general legality and desirability of a mask ordinance, this one raises some troubling questions.

The Ordinance

Milwaukee’s ordinance requires a “face covering” whenever the person “is in a building open to the public” or when a person is within six feet of someone else (outside their household) while outdoors. The ordinance applies to all individuals in the city who are more than 2 years old. Getting a two year old to wear a mask presents challenges on which we need not further comment.

A “face covering” is defined in a pretty straight-forward way; it is simply a protective mask that covers the nose and mouth. While such a covering may be completely ineffectual, it is at least possible to know one when we see it. But that’s about where the ease of understanding ends.

A “building open to the public”is not so clear. The ordinance defines a “building open to the public” as “any structure or premises licensed by the City of Milwaukee or used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or other use by the public.” To say this definition is broad would be an understatement.

Exceptions

There are several exceptions to the ordinance’s mask-wearing requirements that fall generally into a few categories: those with medical reasons for not wearing one, settings where it is not feasible to wear a mask, situations where state or federal law requires someone remove a mask to identify a person, religious reasons, and presence in otherwise approved facilities.

The medical exceptions are fairly straightforward by definition: persons whom the CDC recommends not wear a mask are exempt, as are individuals for whom “no other accommodation can be made under the” federal ADA. Persons who have upper respiratory illnesses, “silent or invisible disabilities,” or are communicating with an individual who is hard of hearing or deaf and have no other means to communicate are also exempt. The ordinance is silent on how such exceptions are to be ascertained.

The feasibility exception might seem fairly straightforward. If you cannot render or receive goods or services with a mask on, you’re exempt. Some such situations are easy to identify. For example, going to the dentist, or, as the ordinance explicitly acknowledges, eating dinner or having a martini, are reasons to take off the mask. The state and federal law exemption also appears to be clear — you can take a mask off when mandated by law to do so in order to verify your identity. What is less clear is whether other forms of impairment qualify. Can a person remove a mask during a TV or radio interview? Can a public speaker — a preacher or instructor — do the same?

The religious belief exemption is less clear, although for constitutional reasons it must be. It creates an exemption for “[p]ersons whose religious beliefs prevent them from wearing a face covering.” What must be done to claim an exemption is not clear.

Lastly, there is an exemption for persons in “government facilities closed to the public, institutions of higher education, public and private K through 12 schools, and childcare or youth facilities” but only when such facilities “have a mitigation strategy approved by the commissioner of health.” There is no such approval process created by the ordinance.

The Penalty

The ordinance itself says the Health Department shall enforce it, but that’s misleading. In reality, the City has essentially deputized all businesses to do its bidding. Businesses who do not enforce the ordinance are subject to a fine of between $50 and $500, and the Health Department is further authorized to pursue license revocation or even to seek a court order shutting the business altogether if they do not enforce the ordinance. It is unclear whether businesses are subject to a form of absolute liability or are held only to a “best efforts” standard, e.g., calling the police with respect to a nonconforming tenant or patron.

There do not appear to be any specific penalties for failing to abide by the mask requirement outdoors, all of the penalties mentioned specifically apply only to the indoor requirement.

Analysis

The ordinance itself is poorly written. This is largely due, we assume, to the haste with which it was passed. Its application raises issues from both a legal and public policy standpoint.

Where does it apply?

As noted herein, the definition of a “building open to the public” is very broad. It includes any place that is “licensed” or “used in whole or part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or other use by the public.” The phrase “or other use by the public” is especially confusing. Is that meant to be be a modifier of “occupancy” and other endeavors — assemblage, trade, etc. — that bring a building within the scope of the ordinance? Or is it its own “catch-all” such that “open to the public” modifies only other uses? If so, are terms like “occupancy” and “trade” sufficient to bring a building within the scope of the ordinance without any need to be “open to the public?”

For example, the City takes the position that the ordinance would not apply to residences, even those in multi-use buildings. That seems reasonable, but the ordinance does not clearly state that. And what of residences to which persons outside the household are invited? Does such a place become “open to the public” such that both members of the household and their invitees must be masked?

A strong case can be made that all uses must be “open to the public.” But even if residences are excluded and all businesses — say those engaged in trade or “assemblage” — must be somehow open to and accessible by the public, what does that mean? If a business allows “the public” into a reception area, but no further — does the ordinance only cover the reception area? What about businesses that are not open to the public? WILL’s offices, for example, are locked to the public. Individuals can only enter if someone opens the door and lets them in. Given that the offices are not open to the public, the ordinance does not apply, but it is not written clearly enough to explain that to the public at large. By leaving it vague, the ordinance lets the public think that it is broader than it is or legally could be.

Based on published press reports and private explanations, the City appears to take the position that to allow employees to enter a space makes that space “open to the public” and imposes a mask requirement on all persons within that space. But, again, that’s not what the ordinance appears to say.

How does it apply?

If that’s so, then the ordinance would presumably impose mask requirements on everyone within the space without regard to social distancing or, for that matter, whether anyone else is present. Perhaps recognizing the overreach inherent in such a position, the City has apparently indicated that individuals in private offices with their doors closed are not required to wear a mask. It has said that persons in other areas within a business need not be masked if no one else “could be” present. However, if the door is open or if another individual enters the office, the City believes the ordinance applies. However reasonable these exceptions might be, they are not set forth in the ordinance and, if they are to be followed, they are followed only at the City’s sufferance and could presumably be ignored at any time.

Questions continue. A hotel room is certainly a place of “lodging” covered by the ordinance. Must an individual wear a mask in their own hotel room? Must he or she do so while sleeping? The ordinance does not provide an exemption — so there again, travelers must rely on the City’s benevolence to avoid running afoul of the law.

Who must enforce it?

The City has effectively deputized all businesses to be its enforcers — threatening fines or even loss of licensure upon those who do not enforce the mandates. This is not entirely unheard of, but what does “enforcement” mean? It is easy to imagine that small retailers might “know” that a patron is maskless or, perhaps, even whether he or she has removed the mask. But what is such a business owner to do? Must he or she physically remove the patron? Or is it enough for the business to request that the patron depart? Must the business call the police if the patron remains without wearing a mask? Is the liability of the business absolute or based on the violation of some standard of care?

And what is the obligation of a business owner if the police do not come? The City has placed itself in the difficult situation of mandating the personal behavior of its residents and those who work here while simultaneously advocating that the police “do less” — even much less — and receive fewer resources to do it. The desire for mandates and the eschewing of enforcement is a tad schizophrenic.

Perhaps such situations can be navigated, but what affirmative obligations are placed on business owners? Must a landlord monitor the activities of its business tenants? Must a hotelier check on her guests? What of a business — say a gymnasium or laundromat — that allows unsupervised access to its premises?

It may be that the City has no intention of enforcing the ordinance. It may be that the idea is not to actually mandate mask wearing but to place an official imprimatur on wearing a mask by proclaiming it to be “the law.” Scofflaws will largely or completely go unpunished but there will be some additional persons who will now wear a mask because they “have to.”

It is debatable whether the law should be used in that way or whether businesses ought to be forced to rely on the City’s assurance that it will not prosecute certain types of “violation.” Placing extraordinary discretion in the hands of the city is an invitation to abuse. We hope the invitation goes unheeded, but it may be better than it not be made in the first place.

What happens outside?

Perhaps little need be said about the ordinance’s “outside” prohibitions since there seems to be no enforcement mechanism? Is that what the City intends? If it is to be enforced, it seems overly broad. There is little or no evidence that fleeting contact outdoors — even within six feet — can spread the virus.

All of the foregoing relates to interpretation of the ordinance. How far does it go? How is it to be read? We have identified a number of areas where it is unclear or seems to go too far. But one can also argue that it does not go far enough. If recent increases in the spread of the virus are attributable to protests, outside gatherings or, as seems likely, bars and house parties, the ordinance does nothing to stem them.

Are there further exceptions?

Finally, there may well be instances in which the ordinance is applied unlawfully. For example, if an individual claims a medical or religious exemption, the business cannot be required to inquire further. A business should not be punished for not demanding information about a customer’s medical conditions or demanding proof of religious adherence. Surely a law that requires a private party to demand proof of a religious belief would raise First Amendment concerns and inquiring into a customer’s medical conditions would violate federal law. Are certain activities — say speech or religious exercise — protected from a mask requirement? Can a public speaker or Catholic priest be made to wear a mask while addressing a crowd or congregation? Must a broadcaster in a studio within the city wear a mask? Can a business be compelled to reveal the identity of a violator or the fact of a violation?

Legal challenges

The general vagueness of the ordinance itself could render it subject to a challenge declaring it unenforceable and void. If the law does not clearly state what it is prohibiting, how can the public be expected to follow it? They cannot, of course. Whether that dooms the entire scheme is something that only litigation will tell.

In addition to a general void for vagueness argument, other challenges could be made depending on the circumstances. For example, there could be challenges under: freedom of speech (is mask wearing “expressive” or does it undercut opposition to mask mandates to simultaneously require someone to wear them?); the right to make personal medical decisions; the right to privacy; and more. The City would have a heightened burden to meet in order to defend the ordinance against such challenges.

Conclusion

So what does all this mean? Unfortunately, there are more questions than answers right now. As discussed, the law could be subject to challenge on a variety of levels but most challenges will have to await any potential enforcement of the ordinance. While “wait and see” is certainly not an effective way to implement public policy, it is the situation that Milwaukee’s city government has put us all in. The ordinance is poorly written, perhaps out of haste, but perhaps to be intentionally vague so that the City can interpret it to mean whatever the City wants.

It is not our purpose to discourage people from wearing masks where appropriate but we are skeptical of mandates. The words used in the law matter and laws must be understandable. This law is not. Anyone who finds themselves on the wrong end of Milwaukee’s Health Department regarding this ordinance should seek legal advice. We at WILL would be happy to discuss taking on such a case. Persons who feel they have been wronged can go to our website at www.will-law.org and submit a request for assistance.