By Lauren Langer and Kathy Shin, Best Best & Krieger LLP
As COVID-19 cases climb in California, state, county and city directives generally require people to wear face coverings outside the home when social distancing is not practical. Avoiding the disruptions of his original stay-at-home orders, Gov. Gavin Newsom announced the State’s face-covering directive on June 18, in response to California’s surge in cases. Failure to comply with the requirement, as implemented in county health officer orders, is a misdemeanor under the Emergency Services Act and other provisions of state law.
But filing a criminal complaint for every mask violation could quickly exhaust local resources and overrun courts already operating at limited capacity. Not only would massive criminal enforcement burden the system, it doesn’t further the goal of face covering rules: gaining compliance and changing behavior.
Since the start of the COVID-19 pandemic, local governments have led the effort in enforcing public health directives. During Stage One, municipalities and local health departments closed public spaces and most non-essential businesses to prevent spread of the virus. In the current effort to safely reopen, cities and counties statewide are turning to public outreach and administrative citations to help their communities adjust to “the new normal,” which, for now, includes wearing face coverings outside the home.
While criminal prosecution is available, cities have another tool in their toolbox: the administrative
approach. In general, state law authorizes cities and counties to enforce any violation of a local ordinance by an administrative fine or penalty. These administrative remedies may be in lieu of, or in addition to, any civil or criminal remedies that would apply to the underlying violation.
By allowing jurisdictions to enforce local laws outside the courts, administrative citations reduce the costs of compliance for both the violator and the public. For this reason, most cities already rely on administrative code enforcement for many municipal code violations, and already have the processes and procedures in place for this type of enforcement. For this type of issue, cities have choices for who does the actual enforcement activities. As with all administrative enforcement, the goal is not punishment; rather, the goal is gaining compliance through personal interactions and verbal or written warnings that precede administrative citations.
Depending on the jurisdiction, administrative fines for violating local face covering requirements can range from $100 to $500 for the first violation, with increasing schedules of fines for repeat offenders. Once local officials have determined that administrative citations are a suitable enforcement tool, the question becomes what amount is likely to deter violations and encourage people to change their behavior? Fines in West Hollywood* cost $250 for a first offense followed by $1,000, $2,000 and $5,000 for each subsequent violation, in addition to a $50 administrative fee. The City of Santa Monica has adopted two fine schedules: individuals are subject to $100 for the first violation, then $250 and $500 for each subsequent violation committed within one year of the first. Businesses are subject to $500 for the first violation, $750 for the second and $1,000 for the third violation committed within one year of the first.
Another element of successful enforcement is to create exemptions locally for individuals who cannot safely wear a face covering. Following the State directive, many local face covering requirements exempt children under age 2 and individuals with a medical condition that prevents wearing a face covering or makes it difficult to remove without assistance. (Individuals that fall under these health exemptions could be encouraged to carry a doctor’s note explaining that they cannot safely wear a face mask. The note need not provide personal medical information and will help enforcement officers quickly determine that the individual is exempt from the rule.) Many local face covering requirements also exempt certain activities permitted by a county health officer order (for example, eating outdoors in accordance with a restaurant reopening protocol).
Even as more jurisdictions opt to enforce local face covering requirements with administrative citations, enforcement officers on the ground continue to rely on education and outreach (including dispensing free masks to members of the public) as their first line of defense. The West Hollywood Sheriff’s Station Community Impact Team, for example, issued 29 mask citations over the past month and several hundred “warnings” over the same period. The Sheriff’s deputies provided free paper face coverings to anyone they encountered who was not wearing a face covering.
In short, the point of these enforcement programs is not to penalize behavior, but to reduce community transmission of the novel coronavirus by the most effective means.
*Editor’s Note: Best Best & Krieger LLP represents the City of West Hollywood as city attorney.
Lauren Langer is a partner in Best Best & Krieger LLP’s Municipal Law practice group. She serves as assistant city attorney to the cities of West Hollywood, Lomita and Hermosa Beach. She can be reached at firstname.lastname@example.org.
Kathy Shin is an associate in Best Best & Krieger LLP’s Municipal Law practice group. She serves as deputy city attorney to the cities of West Hollywood and Palos Verdes Estates, and has helped a number of municipalities navigate emergency orders during the pandemic. She can be reached at email@example.com.