Milwaukee has a new mask mandate, though the city doesn't have any plans for enforcement

A mask mandate is returning to Milwaukee, this time with a potential March 1 end date and no plans to enforce it.

"I think we're hopeful that businesses will be asking their patrons to mask, all businesses whether it's retail, a coffee shop, a restaurant, the Fiserv Forum, which is already asking people to mask," Health Commissioner Kirsten Johnson said in a virtual press briefing following Common Council approval Tuesday. 

Johnson said her department does not have the staff to enforce a mandate as it focuses on COVID-19 testing and vaccination, but she offered support for the ordinance changes approved by the council.

She said her staff only has the capacity to make a note of complaints as they come in.

The council approved a change to the city's existing mask ordinance to require masks for anyone at least 3 years old in buildings open to the public through March 1.

City ordinance had required masks whenever a health order was instituted by the city's health commissioner. The city's health order expired June 1, and Johnson has resisted reinstating it for a series of reasons. The city has had a mask "advisory" in place instead.

Acting Mayor Cavalier Johnson said he would sign the legislation, which he said simply puts into ordinance the existing mask advisory.

The pared-down ordinance was described by council members at Tuesday's meeting as a "recommendation" and a "paper tiger."

Ald. JoCasta Zamarripa, who co-sponsored the legislation with Ald. Marina Dimitrijevic, said council members, the health commissioner and the acting mayor's team worked together to create "a truly compromise piece of legislation."

It comes amid a surge of cases and record hospitalizations in the state as the omicron variant of the virus spreads.

City sees 'extreme transmission' amid stalled vaccinations

The city's vaccination rate for residents at least 16 years old has plateaued near 60%, inching upward slowly. 

The city has also been stuck in a state of "extreme transmission" based on the rate of COVID-19 cases per 100,000 residents over seven days and the percent of tests that come back positive in that period.

The acting mayor said he would sign the legislation because it met criteria including that it be focused on education over punitive measures and has a specific end date. He floated the possibility that the council could lift the requirement early through a special meeting before March 1 and said vaccination is key to getting out of the pandemic. 

Enforcement of the ordinance is not a priority, he said.

Johnson, who also holds the position of Common Council president pending April's mayoral election, did not attend the council meeting. He cannot vote on the council while holding both positions.

The meeting was chaired by Ald. Michael Murphy, who leads the council's Finance and Personnel Committee.

Johnson and Dimitrijevic are among the seven candidates running for mayor. 

The measure exempts performers who are part of rehearsals or performances, athletes taking part in athletic activities and restaurant customers who are eating or drinking. 

It also ditches the fine of up to $500 for businesses that violate the mask ordinance, part of the enforcement mechanism that was previously in place.

Instead, the new legislation states the city's Health Department may submit a written statement about the violation to be added to business owners' license renewal applications. It does not require the Health Department to do so, however, and that step may be taken only after a series of contacts with the business in response to complaints. 

Dimitrijevic said the legislation was meant to be compliance-based, allowing businesses to put up signs putting the responsibility on government for requiring masks. 

Ald. Mark Borkowski was the lone vote against the legislation, and Ald. Scott Spiker abstained. Both of their districts border other communities without mask requirements, creating a situation where business patrons can cross from one community to the other to avoid the requirement.

The March 1 date for the ordinance to sunset was put in place based on advocacy from Ald. Robert Bauman, who represents downtown and also heard concerns from business owners.

A 'non-mandate mandate'

The mandate could be extended when the council meets again on March 1. 

Bauman called the ordinance a "non-mandate mandate" because it allows but does not require the Health Department to take action. He said he would support the legislation because it was a recommendation, not a mandate.

He also warned the Health Department against overstepping and said the path out of the pandemic would be vaccinations over mask mandates.

"They have to realize at some point, any government agency, any regulatory body — however expert they may be and however well-intending they may be — they can't function without the consent of the governed," he said. "And I think health departments across this country at the national level particularly are starting to lose the consent of the governed."

Zamarripa countered that Health Commissioner Kirsten Johnson's focus had been on testing and vaccination over enforcement. 

"That is where her emphasis is and that is why she asked us to help her to ease enforcement for her so that her staff — spread thin as they are, exhausted as they are — are still doing what is the No. 1 goal that we all have and that is to get our folks vaccinated, tested if they need testing," she said.

The health commissioner has cited a series of reasons for not reinstating the mask mandate through a public health order. Among them were challenges with enforcement, the city's proximity to other municipalities without mandates and her fears that a public health order could prompt state legislators to remove powers from public health officers like her.

The city recently distributed 1 million N95 masks to members of the public.

The Milwaukee Teachers' Education Association on Tuesday issued a statement commending city leaders for "finally" taking action to mitigate the virus' spread. At the same time, MTEA President Amy Mizialko said the union supported a stronger indoor mask requirement and criticized the health commissioner for not taking action on her own.

"Unfortunately, Milwaukee's health commissioner made a calculated choice to neglect this responsibility, forcing Milwaukee to endure the full brunt of a surge whose impacts could have and should have been far more manageable for schools and businesses and the families who depend on them," Mizialko said in the statement.

Separate legislation sponsored by Dimitrijevic that would have required the Health Department to distribute free COVID-19 at-home tests and $100 gift cards to 1,000 city residents who received booster shots was held from council action Tuesday. 

Dimitrijevic said she wanted to hold the item following news that the federal government would be imminently distributing at-home COVID-19 tests.

Contact Alison Dirr at 414-224-2383 or adirr@jrn.com. Follow her on Twitter @AlisonDirr.