Berkeley law requires people to wear a mask outdoors anytime they come within six feet of someone not in their household. The health order states that people should start putting masks on when they are 30′ away. Now the city wants to have the option of fining people who don’t comply with the rules. Photo: Pete Rosos

The City Council is considering adding another tool to its COVID-19 enforcement arsenal: an ordinance that could pack the sting of a $100 fine for those who don’t follow city safety mandates.

The Council will discuss the proposed urgency ordinance, which would allow Berkeley’s public health officer or her designees to fine people who repeatedly violate the city’s mask and social distancing mandates, at its Sept. 15 meeting.

Since the pandemic began, Berkeley officials have primarily relied on education to encourage residents to wear masks and follow safety procedures. The ordinance would address the “relatively infrequent instances” in which that isn’t enough, according to a city manager report.

Nearby jurisdictions, including Contra Costa, Napa and Sonoma counties have all passed similar urgency ordinances since the pandemic began in March.

Officials and residents have already begun to discuss how the proposed ordinance will work. A listener at Mayor Jesse Arreguin’s Sept. 8 virtual town hall asked where money from the fines would go, and Arreguin later mentioned it when discussing how the city can respond to health order violations by UC Berkeley students who returned to campus in August.

What isn’t working with the current ordinance?

Currently, the city must seek a criminal prosecution under the health and safety code to do anything other than warn people not wearing masks or staying socially distant. Berkeley can also order a business to shut down to correct violations. Officials want a less blunt instrument to encourage people to comply.

What will the proposed ordinance change?

It would allow the health officer or her designees to give out an administrative citation to people or businesses violating a health order. This would be a civil rather than a criminal remedy for the situation. Using an ordinance and fines as a follow-up to education is a more appropriate step and avoids “unnecessary criminalization,” the staff report reads.

District 4 Councilmember Kate Harrison agrees although she expressed concern that any potential ordinance shouldn’t discriminate against low-income residents who can’t afford masks.

“We definitely need more compliance with mask-wearing,” she said. “It’s pretty stressful, as an individual, when you ask someone to wear a mask and they yell at you,” adding that the burden shouldn’t be on residents. “There are people who don’t want to wear masks, and those people should be given citations.”

My mask protects you. Your mask protects me.
City of Berkeley graphic on mask-wearing.

How many people aren’t complying with the health orders?

There is no official tally of people not wearing masks or gathering in large groups, but lots of anecdotal information. Popular outdoor areas like Lake Anza have been crowded on hot days. A Berkeleyside reader saw several crowded gatherings with few masks at the Tilden lake over Labor Day weekend, the reader wrote in an email.

East Bay Regional Parks District, which oversees Tilden, has primarily relied on signs and social media to inform visitors of safety requirements, said Dave Mason, a spokesperson for EBRPD. The public safety division also responds to reports of unsafe behavior.

“We obviously have stressed what folks need to do to stay safe in parks,” Mason said. “It’s all driven by how busy parks are.”

The district doesn’t generally issue tickets related to COVID-19, Mason added. The most frequent enforcement it does is around illegal or unsafe parking, which spikes on busy days.

Other hotspots have occurred in connection with UC Berkeley students. In early July, the university reported 47 COVID-19 cases connected to a series of CalGreek parties.

Elmwood resident Phil Bokovoy is dissatisfied with how the university has addressed student gatherings in his neighborhood. Most of the students he sees on campus wear masks, he said, but the ones who live in his neighborhood often don’t.

“A lot of the students don’t even move off the sidewalk if they’re not wearing a mask,” Bokovoy added. “It makes me not want to get out much.”

Other universities have taken an active role in monitoring off-campus health violations, like the University of Illinois, which hired additional staff to crack down on student parties, Bokovoy said, referencing reporting from WBEZ Chicago. UC Berkeley should take a similarly active role in protecting its neighbors, perhaps suspending off-campus students who don’t comply with city health mandates, he said.

“We have expressed our concern to the university that they need to take responsibility for the students they’ve pushed out into the neighborhoods over the last couple of years,” he said.

Social distancing among students has been “largely successful” during the first few weeks of the fall semester, Janet Gilmore, a UC Berkeley spokesperson, said in an email. With around 2,000 students now living in dorms, the university’s Center for Student Conduct has received roughly 19 reports of COVID-related violations since the August move-in, she said.

Off-campus, the city is responsible for enforcing health mandates, Gilmore said. She recommended that residents should report students not complying with shelter-in-place orders while off-campus to Berkeley officials, though they can also report COVID-related student misconduct to the university’s Center for Student Conduct.

“The university generally does not have jurisdiction to discipline individual students who violate ordinances when off-campus, such as shelter-in-place regulations, unless harm results to a member of the university community,” she wrote.

“I somewhat challenge that,” Harrison said of the university’s ability to respond to off-campus violations. “I think the university could play a more serious role.”

Currently, the city can respond to disperse a “loud and unruly gathering or party” and fine the hosts upon a second offense. The proposed ordinance would allow an immediate fine if enforcers deem it necessary.

“Violations of the health order are violations of the student code of conduct, and there are serious consequences if students do violate health orders,” Arreguin said at the town hall. “We do have tools that we can use to hold people accountable.”

How would the ordinance work?

Berkeley’s environmental health and neighborhood services code enforcement divisions would be largely responsible for enforcing the ordinance with support from other city divisions, said Matthai Chakko, a city spokesperson said.

If the council implements the ordinance, the city would still use education as its first intervention for businesses and individuals that don’t follow the safety mandate, Chakko said.

However, violations with a serious risk of COVID-19 transmission, like “a large indoor gathering with no social distancing or face masks worn, where participants refuse to come into compliance with the ordinance,” may be given a fine without a prior warning, Chakko added.

The fine could rise to $500 per day for repeated violations, the city manager’s report says.

The city manager would be able to waive the fine at her discretion if it would be a financial hardship and the resident shows that they’ve followed safety mandates since the violation, Chakko added.

“Criminal penalties remain available but would be reserved for egregious violations,” Chakko wrote.

It’s hard to predict if the ordinance would be effective, Harrison said, but “it says something about the seriousness with which we take this.”

The Downtown Berkeley BART Plaza with well-spaced outdoor seating and a woman reading her book with her mask pulled down under her chin. September 8, 2020. Photo: Pete Rosos

Where would money from the fines go?

The proposed ordinance doesn’t specify how the funds would be used. At Arreguin’s Sept. 8 town hall, a listener asked if the money could be used to buy masks for those who can’t afford them.

City Manager Dee Williams-Ridley replied that the city already provides free masks to Berkeleyans, particularly unhoused residents, and has since the mandate went into effect, but she didn’t dismiss the idea.

In an interview, Harrison also suggested using funds from the ordinance to purchase masks for residents who can’t afford them.

Who else is doing this?

Contra Costa County passed its own urgency ordinance on July 28, allowing the county to fine businesses and individuals for violating social distancing orders. The county hasn’t fined anyone yet but has received nearly 500 complaints from residents about potential safety violations since March, said Scott Alonso, a spokesperson for the Contra Costa County District Attorney’s Office.

“It gives us more flexibility to respond to a situation,” Alonso said. Previously, the county’s “only avenue” beyond education was to file a misdemeanor charge, which can take months to resolve, he added.

The four departments enforcing Contra Costa’s ordinance — the District Attorney’s office and the health, conservation and sheriff’s departments — are focusing on businesses over individuals in their efforts to protect local customers, employees and residents, Alonso said. Residents can also contest a fine in an administrative hearing.

“We’re not necessarily going to fine someone for not having their mask while they’re walking down the street. We’ll give them a warning and talk to them,” he said.

Eden Teller is a freelance reporter, writer and amateur gardener. She began reporting for Berkeleyside as an intern in 2013 and continued her career with a B.A. in Media Studies from Macalester College...