So what are you doing for Labor Day?

Suppose you want to take a stroll down the crowded pedestrian path along the shoreline this Labor Day weekend without wearing a face covering.

Or suppose you’d like to join the pick-up soccer game being played by unmasked athletes on a City-owned field.

Or suppose, when you go to the store to stock up on groceries after the stroll or the game, you put on a face covering – but you take it off as soon as you get inside and then saunter through the aisles past other shoppers.

All of these actions are prohibited by Alameda County Public Health Order 20-13 issued on June 5 and updated on July 19.  But, although violation of the Order is a misdemeanor punishable by fine, imprisonment, or both, the County District Attorney has not prosecuted anyone for violating it.  The County may condemn conduct that puts others at risk, but it won’t punish it.

So when we saw the agenda item for Tuesday’s Council meeting about an “urgency ordinance” intended to bolster compliance with County public-health orders, we were hopeful that our own local elected officials were going to make people pay a price for engaging in socially irresponsible behavior in the City of Alameda and thereby deter others from acting the same way. 

After all, as such luminaries as Dr. Anthony Fauci and Mayor Marilyn Ezzy Ashcraft have repeatedly stated, mask-wearing and social-distancing are the best way to stop the spread of the COVID-19 virus.  And if the authorities can’t persuade people to do what they should, they may have to penalize people for doing what they shouldn’t.  “If someone continues to just refuse and ignore the education and the information they’ve given,” Ms. Ashcraft herself declared, “I don’t want us just to look the other way.”

Our hopes turned out to have been disappointed. 

Council did pass an ordinance, but it will be enforced in such a way that our stroller, our soccer player, and our shopper will be able to conduct themselves just as they’d like to this weekend without fear of any immediate legal or financial consequences.

At worst, strolling down the pedestrian path or joining in the soccer game may get the offender a “warning” from a recreation-and-parks department employee or a contract worker hired to carry out the ordinance.  Or maybe not, since the rec/park employees ordinarily don’t work on weekends.

And the stroller may be even luckier still.  When we asked about the shoreline, Recreation and Parks director Amy Wooldridge told us that staff won’t be enforcing mask-wearing by individuals who are bicycling and walking.  For parks and open space, she said, the plan will be to address “egregious” behaviors such as large-group gatherings in picnic areas and athletic fields.

Similarly, at worst, the escapade at the grocery store may get the offender a warning from a City Planning, Building, and Transportation Department “code enforcement officer.”  Or maybe not, since there are four officers covering the entire city and they’ll be devoting only half their time to enforcing the ordinance in the business districts.

If any of the three scofflaws commits the same offense again, another “warning” is all they’ll receive.  Only after the third incident will the rec/park employee or the code enforcement officer write a ticket – or, more formally, issue an administrative citation – carrying a fine for violating the County Health Order.

Indeed, our three offenders may well skate free altogether.  The ordinance applies not just to individuals but also to commercial enterprises like restaurants offering outdoor dining and shops conducting sidewalk sales in the Park and Webster Street business areas and at the South Shore shopping center.  According to PB&T director Andrew Thomas, it is these businesses, rather than individuals, on which the City will focus its enforcement efforts.

What about the cops?  Not to worry:  Council gave the Alameda Police Department no role in the enforcement scheme it approved Tuesday.

Residents elsewhere in the greater Bay Area aren’t getting off so easily.

Since the end of July, six counties – Napa, Marin, Contra Costa, San Mateo, Santa Clara, and Sonoma– have adopted their own ordinances imposing administrative fines for violation of their public-health orders, all of which include mask-wearing and social-distancing requirements and bans on large-group gatherings similar to Alameda County’s.  Just recently, the City of Livermore did so as well.

None of the ordinances sets up a three-step enforcement process like the one to be employed in Alameda.

In fact, the ordinances enacted by five of the counties – Napa, Marin, Contra Costa, Santa Clara, and Sonoma – give the enforcement officer discretion to issue an administrative citation (with associated fines) for violations of their COVID-19 orders on the spot, although the officer may extend a grace period (Napa, Marin, Contra Costa, and Santa Clara) or give a warning first (Sonoma).  The San Mateo ordinance permits a citation only after an offender has failed to comply with a prior written warning.

Moreover, none of the Bay Area counties relies for enforcement of its ordinance solely on non-police personnel as Alameda does.

In fact, the ordinances adopted in three counties – Napa, Marin, and San Mateo – specifically provide for enforcement by, among others, “local police officers,” and two others designate “any sworn peace officer” (Santa Clara) or any “law enforcement officer” (Sonoma) as enforcers.

Finally, unlike Alameda, two counties have invited ordinary citizens to assist with the enforcement efforts:  Marin has set up an email address to which residents can send reports of suspected violations of the county’s COVID-19 orders by businesses, and Sonoma provides three ways for residents to report such violations by businesses or individuals:  by phone, by email, or online.

The staff report presented to Council Tuesday does not discuss any of the laws adopted elsewhere.  Drafted by the City Attorney’s Office, the Alameda ordinance is remarkably terse.  “It shall be unlawful,” it states, “for any person to fail or refuse to comply with any order or directive issued by the Health Officer or designee.”  A person who does so is deemed to have committed an “infraction” and may be issued an “administrative citation” carrying a $250 fine for a first offense.  (The option of criminal prosecution for a misdemeanor remains.)

The ordinance says nothing about how it is to be enforced.  But the staff report laid out the process, and Mr. Thomas and Ms. Wooldridge elaborated at Tuesday’s meeting about what the PB&T director called the “Three Strikes” approach.

The two gave their proposal for sanctioning violators of the County Health Order an extremely soft sell.  “We really see this as a last resort,” Mr. Thomas said.  “We don’t see this as something most Alamedans and businesses in Alameda really need.”  Added Ms. Wooldridge, “We hope we don’t have to charge a single person and hope that people just understand that this is another thing that shows we want people to take it seriously.”

Moreover, even their deferential approach to enforcement wasn’t written in stone.  “We are asking Council, How far do you want us to go with this?” Mr. Thomas said. “We can be very heavy-handed; we can be very light-handed.”  Later, he added, “If Council feels differently, we can be more aggressive, but we’re nervous about being more aggressive.”

What was Mr. Thomas so nervous about?

He didn’t say, but we have a theory:

Four votes are needed to pass an urgency ordinance.  Mayor Ashcraft could be counted on to vote for an ordinance penalizing people who refused to wear masks or practice social-distancing, especially after her recent encounter – through the fence – with County Health Order-defying soccer players at Lincoln Park (which she told her colleagues about Tuesday night).

That left the three Council members who routinely vie to wear the crown of “Most Progressive” – Vice Mayor John Knox White, Councilman Jim Oddie, and Councilwoman Malia Vella.  And it was perhaps inevitable, given their response to the Mali Watkins incident, that they would view the ordinance – like everything else – through the lens
of . . . racism.

Mr. Oddie led off.  “My concern,” he said, is that “now we’re going to unleash a horde of phone calls because somebody’s of a different color and they want to go after them and demand that the City fine them.”  Later, he added, “I don’t want to get in the situation where all the Barbeque Beckys come out, and then we have code enforcement being called on people of color in their social bubble, living their life and having their social bubble at the park.”

Ms. Vella picked up the theme.  She was “worried,” she said, “about this being disparately applied to different cultural groups who might be within their own bubble who don’t have access to an outdoor space, who are using our parks to get outdoors with their families who might be within their own social bubble.”  Her worries extended to enforcement against businesses as well as individuals.  She wanted to make sure, she said, that the ordinance isn’t “being applied differently depending on who the business owner is, what they might look like, what race they are.”

Finally, Mr. Knox White finished the thought (going last only because Mr. Oddie and Ms. Vella raised their hands first).  “This shouldn’t be a response-to-complaints program,” he said.  Staff should think about “what the disparate impacts could be and how they’re going to address that.”  He then went so far as to suggest that, if enforcing the County Health Order at, say, pickleball courts would result in a rash of citations, it would be “better” to close the courts rather than cite the violators.

Now, stop and think about these comments for a minute.

The “Barbeque Beckys” Mr. Oddie is so concerned about are his constituents.  Does the Councilman really think there are Alamedans waiting, phone in hand, for the opportunity to snitch off a Black man who isn’t wearing a face mask?

(Strangely, Mr. Oddie failed to mention that his old boss, State Assemblyman Rob Bonta, sponsored a bill to make it a crime for any Californian to act on this impulse.  In a recent email, the Assemblyman boasted that the bill passed and is awaiting the Governor’s signature.)

Likewise, the enforcers Ms. Vella and Mr. Knox White are so worried about are workers employed in the City’s PB&T and Rec/Park departments.  Do the Council members really think that these City employees will choose to warn and ticket only Black people whom they observe violating the County Health Order and give white people a pass?

Well, maybe the three Council members really do take such a jaundiced view of Alameda residents and City staffers.  Or maybe they just want to be able to proclaim their absolute fidelity to the Black Lives Matter movement:  even an ordinance intended to get people to take actions that will save others’ lives – and remember, Black and Hispanic people suffer disproportionately from COVID-19 – must be subjected to the presumption that it will be applied in a discriminatory manner. 

Mr. Thomas and Ms. Wooldridge are seasoned City staff members, and they know their audience.  Perhaps by designing an enforcement scheme that is less “aggressive” than those found in the laws enacted elsewhere, they could make sure that the “progressive” trio on Council, after declaiming their obligatory speeches, would vote for the ordinance.  So there would be no on-the-spot citations, no role for the police, and no encouragement of citizen complaints. 

In any event, the ordinance passed by a 4-to-1 vote (Councilman Tony Daysog, dissenting).  At the insistence of Mr. Knox White, staff now must provide Council with weekly reports of citations issued under the ordinance, broken down by race and gender.  We will, of course, be interested to see them, but we’re not expecting the new ordinance will have much of an impact.  So we’ve decided to do our bit to promote compliance with the County Health Order.  Click on this link and maybe you’ll do the same.  

Sources:

Alameda County Health Order 20-13: Alameda-county-health-officer-order-20-13 (face covering)

City of Alameda “urgency” ordinance: 2020-09-01 6-A Ordinance; 2020-09-01 staff report re COVID-19 response

County ordinances: Contra Costa County ordinance; Marin County ordinance; Napa County ordinance; San Mateo County ordinance; Santa Clara County ordinance; Sonoma County ordinance