Loading...
COVID-19 Discussion and Decisions_Face Covering / Mask Mandate OrdinanceCopyrighted August 6, 2020 City of Dubuque Special Meeting Action Items # 1. IT E M T I T L E:C O V I D-19 Discussion and Decisions S UM M ARY:City A ttorney providing information on the face covering requirement analysis and capacity L imitation restrictions. Option 1 - O RD I NANC E A mending City of Dubuque Code of Ordinances Title 6 Health, Housing, S anitation and Environment, Chapter 1 Health and S af ety Regulations, by adding a new S ection 2 face Covering Requirement Option 2 - O RD I NANC E A mending City of Dubuque Code of Ordinances Title 6 Health, Housing, S anitation and Environment, Chapter 1 Health and S af ety Regulations, by adding a new S ection 2 Novel Coronavirus 2019 (Covid-19) Mandates S UG G E S T E D D I S P O S I T I O N: Receive and F ile; Ordinance Option 1 O R 2; Motion B, Motion A Suggested Disposition: AT TAC H ME N TS: Description Type Staff Memo Staff Memo Proclamation - Face Covering Supporting Documentation Proclamation - Face Covering & Capacity Restriction Supporting Documentation Ordinance - Face Covering Ordinance Ordinance - Face Covering & Capacity Restriction Ordinance J ochum / I senhart / J ames Legislative Letter Supporting Documentation Dubuque Community Schools Letter Supporting Documentation Suggested Motion Wording Supporting Documentation OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 589-4381 / FAX (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org TO: MAYOR ROY D. BUOL AND MEMBERS OF THE CITY COUNCIL FROM: CRENNA BRUMWELL, CITY ATTORNEY TERI GOODMANN, ASSISTANT CITY MANAGER MARK DALSING, CHIEF OF POLICE DATE: AUGUST 5, 2020 RE: FACE COVERING REQUIREMENT ANALYSIS CAPACITY LIMITATION RESTRICTION Background The City has received requests from members of the Dubuque School Board, community organizations, and citizens to consider a face covering requirement. Additionally, the White House Coronavirus Taskforce report placed Iowa in the red zone for cases, with Dubuque County as one of the counties with the highest number of new cases in the 3-weeks preceding the report and the City of Dubuque is the largest municipality in Dubuque County. The White House Coronavirus Taskforce report made a number of recommendations for red zones including, but not limited to, closing bars and gyms and creating outdoor dining opportunities within pedestrian areas. I am writing to provide information and analysis regarding the possibility of requiring face coverings within the City of Dubuque and the implementation of capacity limitations for some businesses. Governor Reynolds has indicated the Governor’s emergency management authority occupies the field for purposes of preemption and therefore local governments are not authorized to implement face mask mandates or other local regulations. The Governor’s position has been that she has the authority to delegate that authority to local entities, but she has opted not to do so. The Iowa Attorney General’s Office has provided some analysis in support of this position, which I’m attaching as Exhibit A. Home Rule Authority Cities have questioned the Governor’s position as it doesn’t take into consideration cities’ Home Rule Authority. Home Rule Authority has been discussed in my city attorneys group as a possible option for establishing local mandates. Attached as Exhibit B is a 2 document written by Frank Feilmeyer, an Iowa municipal attorney, analyzing Home Rule Authority in Iowa which I will now summarize. Iowa voters in 1968 passed the Home Rule Amendment to the Iowa Constitution which constitutionalized local control in the State of Iowa. The Home Rule Amendment became Article III, Section 38A of the Iowa Constitution granting municipalities the power to determine their local affairs and governing not inconsistent with the laws of the general assembly. Chapter 364 of the Iowa Code reaffirms the constitutional grant of home rule authority to municipalities: “to exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges and property of the city or its residents, and improve the peace, safety, health, welfare and convenience of its residents.” A “city may exercise its general powers subject only to limitations expressly imposed by a state or city law,” and the exercise of a city power “is not inconsistent with a state law unless it is irreconcilable with the state law.” Iowa Code §§ 364.2(2) and (3). The necessary analysis has not been done at the state level as to whether local face mask mandates are irreconcilable with the Governor’s emergency management action. Until that analysis is done, or a court settles the question of preemption, the matter may be considered unsettled. Under Home Rule Authority, a city may set standards “more stringent than those imposed by state law, unless a state law provides otherwise.” Iowa Code § 364.3(a); City of Des Moines v. Gruen, 457 N.W.2d 340, 343 (Iowa 1990); Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978). Options Under Home Rule Authority, in my opinion, the City is within its authority and acts in good faith if the City Council opts to institute a face covering requirement, capacity limitations, or both. The options for acting are: 1) Mayoral Proclamation under Iowa Code § 372.14(2) which authorizes the Mayor “to govern the city by proclamation, upon making a determination that a time of emergency or public danger exists”; or 2) Ordinance There are implications based on which option the City Council may consider adopting. Proclamation A violation of a proclamation is a simple misdemeanor which is a criminal charge subject to a minimum fine of $65, plus a state surcharge and court costs which results in a total fine of approximately $140. A criminal charge will appear on an individual’s 3 criminal record in addition to having a financial impact during already turbulent economic times. Ordinance An ordinance offers more flexibility as the City Council can set the fine and the procedure for processing. This would allow violations to be processed similar to a parking ticket with a nominal fine and opportunity to pay the violation at City Hall. If an individual wanted to challenge a violation, it would be done through the municipal infraction process which is a civil process. This would not appear on a criminal background check. It should be noted that if a municipal infraction is issued, it is processed through the court system will result in court costs of $85. Enforcement Concerns With either option, there will be a need or expectation for enforcement. Enforcement will inevitably fall upon the Dubuque Police Department. As a mask mandate would be new, we do not know what the impact would be on calls for service. Anecdotally, we can look at the differences between private businesses requiring masks compared to those that don’t to get an idea of what level of voluntary compliance we may see. Ultimately, there will be calls for service as community members will likely complain to the Police Department about violations of the mandate. Police response will be prioritized based on other pending calls for service at the time. A delay in response could result in complaints from the original callers. Responding officers will be tasked with enforcing the mandate. Enforcement actions can range from education, warning, and arrest. Officers would be strongly encouraged to attempt to gain compliance through conversations with offenders. Officers could be provided with masks to offer individuals who don’t have a mask. If those efforts fail, officers’ next actions will be based on which option the City Council adopts. For a simple misdemeanor, arrest could result. Arrest does not necessarily mean custodial arrest where a person is taken into custody and taken to jail. Arrest also includes citing and releasing, which would be a preferred method of enforcement but could result in custodial arrest and jailing should a person refuse to comply with the cite- and-release process or the behavior escalates to a violation of other laws such as disorderly conduct or Interference with official acts. If an ordinance is adopted, officers would issue the violation to individuals. Some additional concerns for the Police Department include the current public sentiment about “over-policing,” especially regarding traditionally marginalized communities and communities of color. There will also be concerns about private property owners resisting the City’s efforts to enforce on their private property versus public property. Private businesses have always had the option to enforce mask wearing. In these cases, if a patron refuses to wear a mask per the business’s rules, it would fall into a “right to refuse service” afforded any business, and people that fail to comply can be charged with Trespassing should police be called, and they can’t rectify the situation. This trespass option would be an option to coincide with a local mask ordinance. If a business is trying to enforce the mandate but a customer fails to comply, the customer can be asked to leave, or charged with a violation of the mandate or Trespassing. 4 Additional Concerns As the Governor’s office has indicated the City is not authorized to act, there could be an injunctive action or lawsuit by the Governor/Attorney General’s Office to challenge the City’s action. To date there has been no action by the Governor or Attorney General against Muscatine or Iowa City for their face covering requirements. In the event a lawsuit was filed by the Attorney General’s office the Iowa League would support city/members. In the opinion of the League, preemption does not exist in this situation, and so local control appears to be defendable. It is always difficult to say how authority threatened might react. Other possible concerns resulting from a City of Dubuque mask mandate are political in nature and might potentially impact desired funding and/or policy. In the case of school districts defying the Governor’s directives to open and provide specific required days of education, the Governor is taking a hard line and refusing to grant education credits for the days not in school and requiring students to make up those days at the end of the school year. Governor Reynolds did state, however, that her decision was based on bi-partisan legislation that passed unanimously at the end of session. While there is no way to know what specific consequences could result, the Governor may look for other avenues to hold local governments accountable. It should be noted that other jurisdictions, including, but not limited to, Linn County and Polk County and their respective boards of health are also considering a mask mandate. Proposals for Council Discussion • Proclamation requiring face coverings • Proclamation requiring face coverings and limiting the capacity of bars, restaurants, and gyms to fifty-percent (50%) • Ordinance requiring face coverings • Ordinance requiring face coverings and limiting the capacity of bars, restaurants, and gyms to fifty-percent (50%) Conclusion Staff will be available to answer City Council questions. cc: Michael C. Van Milligen, City Manager Cori Burbach, Assistant City Manager Mary Rose Corrigan, Public Health Specialist Prepared by Crenna M. Brumwell, 300 Main Street Suite 330 Dubuque IA 52001 563 589-4381 ORDINANCE NO. 31-20 AMENDING CITY OF DUBUQUE CODE OF ORDINANCES TITLE 6 HEALTH, HOUSING, SANITATION AND ENVIRONMENT, CHAPTER 1 HEALTH AND SAFETY REGULATIONS, BY ADDING A NEW SECTION 2 FACE COVERING REQUIREMENT NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. City of Dubuque Code of Ordinances Section 6-1 is amended by adding thereto the following new section: 6-1-2: FACE COVERING REQUIREMENT: A. Every person in the City of Dubuque three (3) years of age or older must wear a face covering that covers the person's nose and mouth as follows: 1. Outside whenever one cannot stay at least six (6) feet away from others; 2. Inside any indoor public setting, for example, but not limited to: a. Grocery stores. b. Pharmacies. c. Hardware stores. d. Retail stores. e. Any other indoor public setting when with persons who do not live in the person's household. 3. When using public transportation or a private car service, including taxis, ride share, or carpooling. B. Places and times where a person is not required to wear a face covering: 1. While traveling in a personal vehicle alone or with household members. 2. While a person is alone or in the presence of only household members. 3. While outside, if keeping six (6) feet away from others is possible 4. While exercising at moderate or high intensity such as jogging or biking. 5. While seated at a food establishment in the process of eating or drinking. 6. While obtaining a service that would require temporary removal of the person's face covering. 7. When federal or state law prohibits wearing a face covering or requires the removal of the face covering. C. The following persons are exempt from wearing a face covering: 1. Persons younger than (two) 2 years of age. 2. Anyone who has difficulty breathing or is on oxygen therapy oraventilator. 3. Anyone who is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance. 4. Anyone who has been told by a medical, legal, or behavioral health professional not to wear face coverings. 5. Anyone actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, although a face covering should be worn if possible. 6. A student participating in co -curricular activities when participating according to the Iowa High School Athletic Association rules for wearing face coverings. D. A business that is open to the public must post signs at each entrance instructing customers of the legal obligation to wear a face covering as required by this Ordinance while inside the business. E. No business that is open to the public may provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by this Ordinance. F. Violations 1. For any violation of this chapter, an initial fine of ten dollars ($10.00) if paid within thirty (30) calendar days of the date of the violation. If payment is not made within such thirty (30) calendar days, said fine shall be fifteen dollars ($15.00). 2. Payment of the above fine by mail to the city treasurer shall be deemed paid as of the date of the postmark on the envelope thereof. 2 3. For purposes of this section, a fine shall become delinquent if not paid within thirty (30) calendar days from the date of issuance of the violation notice. 4. The City reserves the right to pursue delinquent violations through collections or the issuance of a municipal infraction pursuant to the City of Dubuque Code of Ordinances §1-4-2. G. Appeal. 1. Within ten (10) days of a violation a person may file with the Police Department a written notice of appeal. 2. Upon appeal, a municipal infraction shall be issued pursuant to City of Dubuque Code of Ordinances §1-4-2. Section 2. This Ordinance shall take effect upon publication. Passed, approved and adopted this 6th day of August 2020. Attest: Ke.in S. Firnstahl, Cit-Clerk Roy D. ol, Mayor 3 5 EXHIBIT A 6 7 8 9 10 EXHIBIT B 11 12 PROCLAMATION WHEREAS, One of the greatest responsibilities of any elected official is the protection of the electorate served and the protection of the greater public health and safety; and WHEREAS, On March 17, 2020, the Governor of Iowa issued a Proclamation of Public Health Disaster Emergency after multiple cases of COVID-19 had been confirmed in Iowa and the Iowa Department of Public Health determined that community spread was occurring within the state; and WHEREAS, As Mayor of the City of Dubuque I took an oath to uphold and defend the Constitution of the United States and the Constitution of the State of Iowa; and WHEREAS, Iowa voters in 1968 passed the Home Rule Amendment to the Iowa Constitution which constitutionalized local control in the State of Iowa; and WHEREAS, The Home Rule Amendment became Article III, Section 38A of the Iowa Constitution granting municipalities the power to determine their local affairs and government not inconsistent with the laws of the general assembly; and WHEREAS, Chapter 364 of the Iowa Code reaffirms the constitutional grant of home rule authority to municipalities “to exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges and property of the city or its residents, and improve the peace, safety, health, welfare and convenience of its residents”; and WHEREAS, A “city may exercise its general powers subject only to limitations expressly imposed by a state or city law,” and the exercise of a city power “is not inconsistent with a state law unless it is irreconcilable with the state law.” Iowa Code section 364.2(2) and (3); and WHEREAS, Governor Reynolds has indicated the Governor’s emergency management authority occupies the field and local governments are not authorized to implement “Stay at Home Orders” or face mask mandates; and WHEREAS, The Governor has failed to perform the necessary analysis as to whether local “Stay at Home Orders” and face mask mandates are irreconcilable with her emergency management action; and WHEREAS, Until that analysis is done, or a court settles the question of preemption, the matter is not settled; and 2 WHEREAS, A city may set standards “more stringent than those imposed by state law, unless a state law provides otherwise.” Iowa Code Section 364.3(a); City of Des Moines v. Gruen, 457 N.W.2d 340, 343 (Iowa 1990); Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978); and WHEREAS, Section 372.14(2) of the Iowa Code authorizes the Mayor “to govern the city by proclamation, upon making a determination that time of emergency or public danger exists”; and WHEREAS, Pursuant to the powers vested in me as Mayor under Section 372.14(2) of the Iowa Code and Section 7-3-1 of the City Code of Dubuque, I issued a Proclamation of Civil Emergency due to the dangers presented by the Novel Coronavirus 2019 (COVID-19) and declared my intention to take such extraordinary measures as are in my judgment necessary to maintain health, welfare and safety within the community; and WHEREAS, A July 26, 2020 White House Coronavirus Taskforce report placed Iowa in the red zone for cases, indicating more than 100 new cases per 100,000 population; and WHEREAS, Dubuque County was one of the counties in the White House Coronavirus Taskforce Report with the highest number of new cases in the 3-week preceding the report; and WHEREAS, The City of Dubuque is the largest municipality in Dubuque County; and, WHEREAS, The White House Coronavirus Taskforce report made the following policy recommendations for counties in the red zone: • Public Messaging o Wear a mask at all times outside the home and maintain physical distance o Limit social gatherings to 10 people or fewer o Do not go to bars, nightclubs, or gyms o Use take out or eat outdoors socially distanced o Protect anyone with serious medical conditions at home by social distancing at home and using high levels of personal hygiene, including hand washing and cleaning surfaces o Reduce your public interactions and activities to 25% of your normal activity • Public Officials o Close bars and gyms, and create outdoor dining opportunities with pedestrian areas o Limit social gatherings to 10 people or fewer o Institute routine weekly testing of all workers in assisted living and long-term care facilities 3 o Require masks for all staff and prohibit visitors o Ensure that all business retailers and personal services require masks and can safely social distance o Increase messaging on the risk of serious disease for individuals in all age groups with preexisting obesity, hypertension, and diabetes mellitus, and recommend to shelter in place o Work with local community groups to provide targeted, tailored messaging to communities with high case rates, and increase community level testing o Recruit more contact tracers as community outreach workers to ensure all cases are contacted and all positive households are individually tested within 24hours o Provide isolation facilities outside of households if positive individuals can't quarantine successfully • Testing o Move to community-led neighborhood testing and work with local community groups to increase access to testing o Surge testing and contact tracing resources to neighborhoods and zip codes highest case rates o Diagnostic pooling: Laboratories should use pooling of samples to increase testing access and reduce turn around times to under 12 hours. Consider pools of 2-3 individuals in high incidence settings and 5 :1 pools in setting where test positivity is under 10 % o Surveillance pooling: For family and cohabitating households, screen entire households in a single test by pooling specimens of all members into single collection device WHEREAS, This month brings the return to the City of thousands of students to attend the local colleges and universities and the start of the school year for elementary, middle, and high school students, which will further increase the risk of spread of the virus within our community; and WHEREAS, Members of the Dubuque Community School Board have asked the City Council to ensure the safety of students, teachers, and staff in the public schools by requiring mask wearing to reduce the spread of COVID-19 in the community; and WHEREAS, The Centers for Disease Control (CDC) has determined that face coverings are a critical tool in the fight against COVID-19 that could reduce the spread of the virus, particularly when used universally within communities; and WHEREAS, The Governor’s current proclamation requires that businesses and gatherings ensure social distancing of employees, customers and 4 attendees, increased hygiene practices, and other public health measures to reduce the risk of transmission of COVID-19 consistent with the guidance of the Iowa Department of Public Health (IDPH); and WHEREAS, The IDPH’s reopening guidance advises that members of the public consider the use of cloth face coverings when distancing is not possible because wearing face coverings in public places where social distancing measures are difficult (like grocery stores and pharmacies) can help slow the spread of COVID-19, and refers the public to the “local public health agency, the appropriate regulating agency or professional association” with questions about how to implement its guidance; and WHEREAS, A requirement that persons in Dubuque wear face coverings is essential to reducing the risk of transmission of COVID-19, and necessary to protect the health, welfare and safety of residents and visitors and accelerate local recovery efforts; and WHEREAS, A requirement to wear face coverings is consistent with the Governor’s proclamation and the guidance of the IDPH and the Dubuque County Department of Public Health; and WHEREAS, Pursuant to Article III, Section 38A of the Iowa Constitution, the powers vested in me as Mayor under Section 372.14(2) of the Iowa Code, Section 7-3-1 of the City of Dubuque Code of Ordinances, I deem it essential that when present within the City of Dubuque all persons wear face coverings as ordered below. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND OTHER VALID EMERGENT CONCERNS, I, ROY D. BUOL, MAYOR OF THE CITY OF DUBUQUE, PROCLAIM AND ORDER THE FOLLOWING: I hereby determine that a state of emergency or public danger in the City of Dubuque exists and continues. Every person in the City of Dubuque two (2) years of age or older must wear a face covering that covers the person’s nose and mouth when in a public place as follows: • In public, as opposed to being in one’s place of residence, when one cannot stay six (6) feet away from others; • Inside of any indoor public settings, for example, but not limited to: • Grocery stores • Pharmacies • Hardware stores • Retail stores 5 • Other public settings that are not one’s place of residence and when with persons who do not live in the household; • Outside, if keeping six (6) feet away from others is not possible; and • Using public transportation or a private car service (including taxis, ride share, or carpooling). No business that is open to the public may provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by this Order, and businesses that are open to the public must post signs at entrance(s) instructing customers of their legal obligation to wear a face covering while inside. The following persons are exempt from wearing a face covering: • Persons younger than (two) 2 years of age due to the risk of suffocation • Anyone who has trouble breathing or is on oxygen therapy or a ventilator • Anyone who is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance • Anyone who has been told by a medical, legal, or behavioral health professional not to wear face coverings • Anyone actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, although a mask should be worn if possible. Places and times where persons are exempt from wearing a face covering: • While traveling in a personal vehicle alone or with household members • While a person is alone or in the presence of only household members • While outside, if keeping six (6) feet away from others is possible • While exercising at moderate or high intensity such as jogging or biking • While seated at a food establishment in the process of eating or drinking • While obtaining a service that would require temporary removal of the person’s face covering • When federal or state law prohibits wearing a face covering or requires the removal of the face covering 6 I continue to strongly encourage citizens to adjust to life with COVID-19 in an open economy, prior to the availability of a vaccine, by: 1) Regularly washing your hands for twenty (20) seconds and routinely sanitizing frequently touched surfaces; 2) Practicing social and physical distancing whenever possible; and 3) Monitoring your personal health and if you are exhibiting COVID-19 symptoms or have been exposed to a positive COVID-19 case, staying home and contacting your medical provider. The provision of any prior proclamations shall continue until modified, rescinded, or extended. This Order shall remain in place until rescinded. Pursuant to City Code Section 7-3-1, a violation of this Order or any directive given pursuant hereto by any police officer shall be unlawful and punishable as a simple misdemeanor. Citation shall be a last resort to obtain compliance. This Proclamation of emergency and public danger is part of an ongoing response of the City of Dubuque to an ever-changing situation to protect public health and safety. This proclamation may be modified or superseded with more restrictive proclamations at any time as circumstances warrant. Please be aware these decisions have been made based upon the information available today. You can find the most recent information about the City’s response to COVID-19 at www.cityofdubuque.org. PROCLAIMED THIS DAY OF 2020 BY THE AUTHORITY VESTED IN ME BY THE CODE OF IOWA AND THE CITY OF DUBUQUE CODE OF ORDINANCES. IN WITNESS THEREOF, I have hereunto set my hand and caused the Great Seal of the City of Dubuque to be affixed this day of 2020. ________________________________ Roy D. Buol, Mayor Attest: ________________________________ Kevin S. Firnstahl, CMC, City Clerk PROCLAMATION WHEREAS, One of the greatest responsibilities of any elected official is the protection of the electorate served and the protection of the greater public health and safety; and WHEREAS, On March 17, 2020, the Governor of Iowa issued a Proclamation of Public Health Disaster Emergency after multiple cases of COVID-19 had been confirmed in Iowa and the Iowa Department of Public Health determined that community spread was occurring within the state; and WHEREAS, As Mayor of the City of Dubuque I took an oath to uphold and defend the Constitution of the United States and the Constitution of the State of Iowa; and WHEREAS, Iowa voters in 1968 passed the Home Rule Amendment to the Iowa Constitution which constitutionalized local control in the State of Iowa; and WHEREAS, The Home Rule Amendment became Article III, Section 38A of the Iowa Constitution granting municipalities the power to determine their local affairs and government not inconsistent with the laws of the general assembly; and WHEREAS, Chapter 364 of the Iowa Code reaffirms the constitutional grant of home rule authority to municipalities “to exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges and property of the city or its residents, and improve the peace, safety, health, welfare and convenience of its residents”; and WHEREAS, A “city may exercise its general powers subject only to limitations expressly imposed by a state or city law,” and the exercise of a city power “is not inconsistent with a state law unless it is irreconcilable with the state law.” Iowa Code section 364.2(2) and (3); and WHEREAS, Governor Reynolds has indicated the Governor’s emergency management authority occupies the field and local governments are not authorized to implement “Stay at Home Orders” or face mask mandates; and WHEREAS, The Governor has failed to perform the necessary analysis as to whether local “Stay at Home Orders” and face mask mandates are irreconcilable with her emergency management action; and 2 WHEREAS, Until that analysis is done, or a court settles the question of preemption, the matter is not settled; and WHEREAS, A city may set standards “more stringent than those imposed by state law, unless a state law provides otherwise.” Iowa Code Section 364.3(a); City of Des Moines v. Gruen, 457 N.W.2d 340, 343 (Iowa 1990); Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978); and WHEREAS, Section 372.14(2) of the Iowa Code authorizes the Mayor “to govern the city by proclamation, upon making a determination that time of emergency or public danger exists”; and WHEREAS, Pursuant to the powers vested in me as Mayor under Section 372.14(2) of the Iowa Code and Section 7-3-1 of the City Code of Dubuque, I issued a Proclamation of Civil Emergency due to the dangers presented by the Novel Coronavirus 2019 (COVID-19) and declared my intention to take such extraordinary measures as are in my judgment necessary to maintain health, welfare and safety within the community; and WHEREAS, A July 26, 2020 White House Coronavirus Taskforce report placed Iowa in the red zone for cases, indicating more than 100 new cases per 100,000 population; and WHEREAS, Dubuque County was one of the counties in the White House Coronavirus Taskforce Report with the highest number of new cases in the 3-week preceding the report; and WHEREAS, The City of Dubuque is the largest municipality in Dubuque County; and, WHEREAS, The White House Coronavirus Taskforce report made the following policy recommendations for counties in the red zone: • Public Messaging o Wear a mask at all times outside the home and maintain physical distance o Limit social gatherings to 10 people or fewer o Do not go to bars, nightclubs, or gyms o Use take out or eat outdoors socially distanced o Protect anyone with serious medical conditions at home by social distancing at home and using high levels of personal hygiene, including hand washing and cleaning surfaces o Reduce your public interactions and activities to 25% of your normal activity • Public Officials 3 o Close bars and gyms, and create outdoor dining opportunities with pedestrian areas o Limit social gatherings to 10 people or fewer o Institute routine weekly testing of all workers in assisted living and long-term care facilities o Require masks for all staff and prohibit visitors o Ensure that all business retailers and personal services require masks and can safely social distance o Increase messaging on the risk of serious disease for individuals in all age groups with preexisting obesity, hypertension, and diabetes mellitus, and recommend to shelter in place o Work with local community groups to provide targeted, tailored messaging to communities with high case rates, and increase community level testing o Recruit more contact tracers as community outreach workers to ensure all cases are contacted and all positive households are individually tested within 24hours o Provide isolation facilities outside of households if positive individuals can't quarantine successfully • Testing o Move to community-led neighborhood testing and work with local community groups to increase access to testing o Surge testing and contact tracing resources to neighborhoods and zip codes highest case rates o Diagnostic pooling: Laboratories should use pooling of samples to increase testing access and reduce turn around times to under 12 hours. Consider pools of 2-3 individuals in high incidence settings and 5 :1 pools in setting where test positivity is under 10 % o Surveillance pooling: For family and cohabitating households, screen entire households in a single test by pooling specimens of all members into single collection device WHEREAS, This month brings the return to the City of thousands of students to attend the local colleges and universities and the start of the school year for elementary, middle, and high school students, which will further increase the risk of spread of the virus within our community; and WHEREAS, Members of the Dubuque Community School Board have asked the City Council to ensure the safety of students, teachers, and staff in the public schools by requiring mask wearing to reduce the spread of COVID-19 in the community; and 4 WHEREAS, The Centers for Disease Control (CDC) has determined that face coverings are a critical tool in the fight against COVID-19 that could reduce the spread of the virus, particularly when used universally within communities; and WHEREAS, The Governor’s current proclamation requires that businesses and gatherings ensure social distancing of employees, customers and attendees, increased hygiene practices, and other public health measures to reduce the risk of transmission of COVID-19 consistent with the guidance of the Iowa Department of Public Health (IDPH); and WHEREAS, The IDPH’s reopening guidance advises that members of the public consider the use of cloth face coverings when distancing is not possible because wearing face coverings in public places where social distancing measures are difficult (like grocery stores and pharmacies) can help slow the spread of COVID-19, and refers the public to the “local public health agency, the appropriate regulating agency or professional association” with questions about how to implement its guidance; and WHEREAS, A requirement that persons in Dubuque wear face coverings is essential to reducing the risk of transmission of COVID-19, and necessary to protect the health, welfare and safety of residents and visitors and accelerate local recovery efforts; and WHEREAS, A requirement to wear face coverings is consistent with the Governor’s proclamation and the guidance of the IDPH and the Dubuque County Department of Public Health; and WHEREAS, Pursuant to Article III, Section 38A of the Iowa Constitution, the powers vested in me as Mayor under Section 372.14(2) of the Iowa Code, Section 7-3-1 of the City of Dubuque Code of Ordinances, I deem it essential that when present within the City of Dubuque all persons wear face coverings as ordered below. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND OTHER VALID EMERGENT CONCERNS, I, ROY D. BUOL, MAYOR OF THE CITY OF DUBUQUE, PROCLAIM AND ORDER THE FOLLOWING: I hereby determine that a state of emergency or public danger in the City of Dubuque exists and continues. Every person in the City of Dubuque two (2) years of age or older must wear a face covering that covers the person’s nose and mouth when in a public place as follows: 5 • In public, as opposed to being in one’s place of residence, when one cannot stay six (6) feet away from others; • Inside of any indoor public settings, for example, but not limited to: • Grocery stores • Pharmacies • Hardware stores • Retail stores • Other public settings that are not one’s place of residence and when with persons who do not live in the household; • Outside, if keeping six (6) feet away from others is not possible; and • Using public transportation or a private car service (including taxis, ride share, or carpooling). No business that is open to the public may provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by this Order, and businesses that are open to the public must post signs at entrance(s) instructing customers of their legal obligation to wear a face covering while inside. The following persons are exempt from wearing a face covering: • Persons younger than (two) 2 years of age due to the risk of suffocation • Anyone who has trouble breathing or is on oxygen therapy or a ventilator • Anyone who is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance • Anyone who has been told by a medical, legal, or behavioral health professional not to wear face coverings • Anyone actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, although a mask should be worn if possible. Places and times where persons are exempt from wearing a face covering: • While traveling in a personal vehicle alone or with household members • While a person is alone or in the presence of only household members 6 • While outside, if keeping six (6) feet away from others is possible • While exercising at moderate or high intensity such as jogging or biking • While seated at a food establishment in the process of eating or drinking • While obtaining a service that would require temporary removal of the person’s face covering • When federal or state law prohibits wearing a face covering or requires the removal of the face covering The following businesses shall be restricted to fifty-percent (50%) capacity. • Restaurants • Bars • Fitness Centers I continue to strongly encourage citizens to adjust to life with COVID-19 in an open economy, prior to the availability of a vaccine, by: 1) Regularly washing your hands for twenty (20) seconds and routinely sanitizing frequently touched surfaces; 2) Practicing social and physical distancing whenever possible; and 3) Monitoring your personal health and if you are exhibiting COVID-19 symptoms or have been exposed to a positive COVID-19 case, staying home and contacting your medical provider. The provision of any prior proclamations shall continue until modified, rescinded, or extended. This Order shall remain in place until rescinded . Pursuant to City Code Section 7-3-1, a violation of this Order or any directive given pursuant hereto by any police officer shall be unlawful and punishable as a simple misdemeanor. Citation shall be a last resort to obtain compliance. This Proclamation of emergency and public danger is part of an ongoing response of the City of Dubuque to an ever-changing situation to protect public health and safety. This proclamation may be modified or superseded with more restrictive proclamations at any time as circumstances warrant. Please be aware these decisions have been made based upon the information available today. You can find the most recent information about the City’s response to COVID-19 at www.cityofdubuque.org. 7 PROCLAIMED THIS DAY OF 2020 BY THE AUTHORITY VESTED IN ME BY THE CODE OF IOWA AND THE CITY OF DUBUQUE CODE OF ORDINANCES. IN WITNESS THEREOF, I have hereunto set my hand and caused the Great Seal of the City of Dubuque to be affixed this day of 2020. ________________________________ Roy D. Buol, Mayor Attest: ________________________________ Kevin S. Firnstahl, CMC, City Clerk Prepared by Crenna M. Brumwell, 300 Main Street Suite 330 Dubuque IA 52001 563 589-4381 ORDINANCE NO. ________-20 AMENDING CITY OF DUBUQUE CODE OF ORDINANCES TITLE 6 HEALTH, HOUSING, SANITATION AND ENVIRONMENT, CHAPTER 1 HEALTH AND SAFETY REGULATIONS, BY ADDING A NEW SECTION 2 FACE COVERING REQUIREMENT NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. City of Dubuque Code of Ordinances Section 6-1 is amended by adding thereto the following new section: 6-1-2: FACE COVERING REQUIREMENT: A. Every person in the City of Dubuque two (2) years of age or older must wear a face covering that covers the person’s nose and mouth as follows: 1. Outside whenever one cannot stay at least six (6) feet away from others; 2. Inside any indoor public setting, for example, but not limited to: a. Grocery stores. b. Pharmacies. c. Hardware stores. d. Retail stores. e. Any other indoor public setting when with persons who do not live in the person’s household. 3. When using public transportation or a private car service, including taxis, ride share, or carpooling. B. Places and times where a person is not required to wear a face covering: 1. While traveling in a personal vehicle alone or with household members. 2. While a person is alone or in the presence of only household members. 3. While outside, if keeping six (6) feet away from others is possible 2 4. While exercising at moderate or high intensity such as jogging or biking. 5. While seated at a food establishment in the process of eating or drinking. 6. While obtaining a service that would require temporary removal of the person’s face covering. 7. When federal or state law prohibits wearing a face covering or requires the removal of the face covering. C. The following persons are exempt from wearing a face covering: 1. Persons younger than (two) 2 years of age. 2. Anyone who has difficulty breathing or is on oxygen therapy or a ventilator. 3. Anyone who is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance. 4. Anyone who has been told by a medical, legal, or behavioral health professional not to wear face coverings. 5. Anyone actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, although a face covering should be worn if possible. D. A business that is open to the public must post signs at each entrance instructing customers of the legal obligation to wear a face covering as required by this Ordinance while inside the business. E. No business that is open to the public may provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by this Ordinance. F. Violations 1. For any violation of this chapter, an initial fine of ten dollars ($10.00) if paid within thirty (30) calendar days of the date of the violation. If payment is not made within such thirty (30) calendar days, said fine shall be fifteen dollars ($15.00). 2. Payment of the above fine by mail to the city treasurer shall be deemed paid as of the date of the postmark on the envelope thereof. 3. For purposes of this section, a fine shall become delinquent if not paid within thirty (30) calendar days from the date of issuance of the violation notice. 3 4. The City reserves the right to pursue delinquent violations through collections or the issuance of a municipal infraction pursuant to the City of Dubuque Code of Ordinances §1-4-2. G. Appeal. 1. Within ten (10) days of a violation a person may file with the Police Department a written notice of appeal. 2. Upon appeal, a municipal infraction shall be issued pursuant to City of Dubuque Code of Ordinances §1-4-2. Section 2. This Ordinance shall take effect upon publication. Passed, approved and adopted this 6th day of August, 2020. _____________________________________ Roy D. Buol, Mayor Attest: _________________________________ Kevin S. Firnstahl, City Clerk Prepared by Crenna M. Brumwell, 300 Main Street Suite 330 Dubuque IA 52001 563 589-4381 ORDINANCE NO. ________-20 AMENDING CITY OF DUBUQUE CODE OF ORDINANCES TITLE 6 HEALTH, HOUSING, SANITATION AND ENVIRONMENT, CHAPTER 1 HEALTH AND SAFETY REGULATIONS, BY ADDING A NEW SECTION 2 NOVEL CORONAVIRUS 2019 (COVID-19) MANDATES NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. City of Dubuque Code of Ordinances Section 6-1 is amended by adding thereto the following new section: 6-1-2: NOVEL CORONAVIRUS 2019 (COVID-19) MANDATES: A. FACE COVERING REQUIREMENT. 1. Every person in the City of Dubuque two (2) years of age or older must wear a face covering that covers the person’s nose and mouth as follows: a. Outside whenever one cannot stay at least six (6) feet away from others; b. Inside any indoor public setting, for example, but not limited to: i. Grocery stores. ii. Pharmacies. iii. Hardware stores. iv. Retail stores. v. Any other indoor public setting when with persons who do not live in the person’s household. c. When using public transportation or a private car service, including taxis, ride share, or carpooling. 2. Places and times where a person is not required to wear a face covering: a. While traveling in a personal vehicle alone or with household members. b. While a person is alone or in the presence of only household members. 2 c. While outside, if keeping six (6) feet away from others is possible. c. While exercising at moderate or high intensity such as jogging or biking. d. While seated at a food establishment in the process of eating or drinking. e. While obtaining a service that would require temporary removal of the person’s face covering. f. When federal or state law prohibits wearing a face covering or requires the removal of the face covering. 3. The following persons are exempt from wearing a face covering: a. Persons younger than (two) 2 years of age. b. Anyone who has difficulty breathing or is on oxygen therapy or a ventilator. c. Anyone who is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance. d. Anyone who has been told by a medical, legal, or behavioral health professional not to wear face coverings. e. Anyone actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, although a face covering should be worn if possible. 4. A business that is open to the public must post signs at each entrance instructing customers of the legal obligation to wear a face covering as required by this Ordinance while inside the business. 5. No business that is open to the public may provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by this Ordinance. 6. Violations. a. For any violation of this chapter, an initial fine of ten dollars ($10.00) if paid within thirty (30) calendar days of the date of the violation. If payment is not made within such thirty (30) calendar days, said fine shall be fifteen dollars ($15.00). b. Payment of the above fine by mail to the city treasurer shall be deemed paid as of the date of the postmark on the envelope thereof. 3 c. For purposes of this section, a fine shall become delinquent if not paid within thirty (30) calendar days from the date of issuance of the violation notice. d. The City reserves the right to pursue delinquent violations through collections or the issuance of a municipal infraction pursuant to the City of Dubuque Code of Ordinances §1-4-2. 7. Appeal. a. Within ten (10) days of a violation a person may file with the Police Department a written notice of appeal. b. Upon appeal, a municipal infraction shall be issued pursuant to City of Dubuque Code of Ordinances §1-4-2. B. TEMPORARY CAPACITY RESTRICTIONS. 1. The following businesses shall be restricted to fifty-percent (50%) capacity. a. Restaurants b. Bars c. Fitness Centers 2. The City shall make adjustments and accommodations as possible and safe to offer these businesses flexibility in use of additional outdoor spaces, including possible use of public streets and right-of-ways to account for the reduced indoor capacity. 3. Violations. Any violation of this section is subject to a civil penalty per §1-4-2. Section 2. This Ordinance shall take effect upon publication. Passed, approved and adopted this 6th day of August, 2020. _____________________________________ Roy D. Buol, Mayor Attest: _________________________________ Kevin S. Firnstahl, City Clerk Iowa General Assembly STATEHOUSE Des Moines, IA 50319 August 4, 2020 Dubuque City Council Roy Buol, Mayor Kevin Firnstahl, City Clerk 50 W. 13th St. Dubuque, IA 52001 Dear City Council Members: We write today to urge the Dubuque City Council to respond favorably to the plea of members of the Dubuque Community School Board by instituting a City-wide mask or face-covering requirement to reduce and reverse the rate of COVID -19 infection in the City. We suggest that the policy remain in place until the disaster emergency declaration is lifted. We reach out to you in response to the governor’s proclamation of July 17, in which the governor “directs that all state agencies, school districts and other local governmental bodies and agencies shall take all efforts to prepare to safely welcome back students and teachers to school in-person this fall.” We remain committed to working with you to ensure the health and safety of our mutual constituents. We look forward to hearing from you regarding how we can assist in the successful promotion and implementation of a face-covering policy for the City of Dubuque. Thank you for your attention and prompt consideration. Sincerely, State Rep. Lindsay James State Senator Pam Jochum State Rep. Chuck Isenhart Iowa House District 100 Iowa Senate District 50 Iowa House District 100 c: Brad Cavanagh, Ric Jones, Kevin Lynch, David Resnick, Laura Roussell, Danny Sprank, Mike Van Milligan, Mary Rose Corrigan 1 Kevin Firnstahl From:Mike Van Milligen Sent:Tuesday, August 4, 2020 4:53 PM To:Kevin Firnstahl Cc:Roy D. Buol; Crenna Brumwell; Teri Goodmann Subject:Fwd: [External Sender] Fwd: Dubuque Mask Mandate From: Parks, Kate <kparks@dbqschools.org> Sent: Monday, July 27, 2020 16:22 To: Roy D. Buol <rdbuol@cityofdubuque.org>; Ric W. Jones <rjones@cityofdubuque.org>; David T. Resnick <dresnick@cityofdubuque.org>; Laura Roussell <Lroussell@cityofdubuque.org>; Danny Sprank <Dsprank@cityofdubuque.org>; Brad Cavanagh <Bcavanagh@cityofdubuque.org> Cc: Prochaska, Jim <jprochaska@dbqschools.org>; Sainci, Anderson <asainci@dbqschools.org>; Bradley, Nancy <nabradley@dbqschools.org>; Donohue, Mike <mdonohue@dbqschools.org>; srheingans@dbqschools.org Subject: Dubuque Mask Mandate Dear Mayor Buol and Members of the Dubuque City Council: As you are aware, the Dubuque Community School district has been tasked with prioritizing in-person education for our students and moving to safe and fully in-person instruction as soon as possible. Our hybrid plan is a step in that direction, but we can't fully reopen schools until it is safe to do so and the spread of COVID-19 in our community has decreased. We also understand that there are only a few known tools in the toolbox to deal with COVID-19, one of which is mask wearing in public. The return to learn plan requires mask wearing in schools and on school busses. A county-wide and/or city-wide mask mandate would be an important way to support our efforts, while helping to reduce the spread of COVID-19 in the larger community, moving us closer to our goal of eventually reopening schools fully. Local leaders can provide needed direction for our residents and help establish the essential norm of wearing masks when in public and where social distancing is not possible. A mask mandate is not in our authority as a school board to order, but we implore city and county officials to make this vital move forward as soon as possible. Learning in a safe, in-person environment is what is best for our students, teachers, and staff. With your 2 leadership, we hope that the community will mask-up for students and schools. Thank you for your consideration of this and your support of the Dubuque Community School District. Sincerely, Nancy Bradley, Mike Donohue, Kate Parks, Jim Prochaska, and Anderson Sainci Click here to report this email as spam. Suggested Motion Wording for Ordinances - Motion B / Motion A Motion B I move to receive and file the communications and further move that the requirement that a proposed Ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which is to be finally passed be suspended. Second & vote called; then: Motion A I move final consideration and passage of the Ordinance. Second & vote called If Motion B does not pass: I move to receive and file the communications and I move first (or second) consideration of the Ordinance. Upon third reading: I move final consideration and passage of the Ordinance. STATE OF IOWA SS: DUBUQUE COUNTY CERTIFICATE OF PUBLICATION I, Kathy Goetzinger, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: 08/08/2020 and for which the charge is 50.10 --;11-_ice. CYZ.f re me, a Nota ublic in Subscribed toefoNotary and for Dubuque County, Iowa, this loth day of August, 2020 Nota ublic in and for Dubuque'County, Iowa. IJANET K. PAPE I Commission Number 199559 ,. '.,r wH011. Esp. DEC 11, 20221 Ad text : OFFICIAL PUBLICATION ORDINANCE NO. 31-20 AMENDING CITY OF DUBUQUE CODE OF ORDINANCES TITLE 6 HEALTH, HOUSING, SANITATION AND ENVIRONMENT, CHAPTER 1 HEALTH AND SAFETY REGULATIONS, BY ADDING A NEW SECTION 2 FACE COVERING REQUIREMENT NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1."City of Dubuque Code of Ordinances Section 6-1 is amended by adding thereto the following new section: 6-1-2: "FACE COVERING REQUIREMENT: A. "Every person in the City of Dubuque three (3) years of age or older must wear a face covering that covers the person's nose and mouth as follows: 1. "Outside whenever one cannot stay at least six (6) feet away from others; 2. "Inside any indoor public setting, for example, but not limited to: a. "Grocery stores. b. "Pharmacies. c. "Hardware stores. d. "Retail stores. e. "Any other indoor public setting when with persons who do not live in the person's household. 3. "When using public transportation or a private car service, including taxis, ride share, or carpooling. B. "Places and times where a person is not required to wear a face covering: 1. "While traveling in a personal vehicle alone or with household members. 2. "While a person is alone or in the presence of only household members. 3. "While outside, if keeping six (6) feet away from others is possible 4. "While exercising at moderate or high intensity such as jogging or biking. 5. "While seated at a food establishment in the process of Brin eating or drinking. 6. "While obtaining a service that would require temporary removal of the person's face covering. 7. "When federal or state law prohibits wearing a face covering or requires the removal of the face covering. C. "The following persons are exempt from wearing a face covering: 1. "Persons younger than (three) 3 years of age. 2. "Anyone who has difficulty breathing or is on oxygen therapy or a ventilator. 3. "Anyone who is unconscious, incapacitated, or otherwise unable to remove the face covering without assistance. 4. "Anyone who has been told by a medical, legal, or behavioral health professional not to wear face coverings. 5."Anyone actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, although a face covering should be worn if possible. 6. "A student participating in co -curricular activities when participating according to the Iowa High School Athletic Association rules for wearing face coverings. D. "A business that is open to the public must post signs at each entrance instructing customers of the legal obligation to wear a face covering as required by this Ordinance while inside the business. E. "No business that is open to the public may provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by this Ordinance F. "Violations 1. "For any violation of this chapter, an initial fine of ten dollars ($10.00) if paid within thirty (30) calendar days of the date of the violation. If payment is not made within such thirty (30) calendar days, said fine shall be fifteen dollars ($15.00). 2. "Payment of the above fine by mail to the city treasurer shall be deemed paid as of the date of the postmark on the envelope thereof. 3. "For purposes of this section, a fine shall become delinquent if not paid within thirty (30) calendar days from the date of issuance of the violation notice. 4. "The City reserves the right to pursue delinquent violations through collections or the issuance of a municipal infraction pursuant to the City of Dubuque Code of Ordinances *1-4-2. G."Appeal. 1. "Within ten (10) days of a violation a person may file with the Police Department a written notice of appeal. 2. "Upon appeal, a municipal infraction shall be issued pursuant to City of Dubuque Code of Ordinances *1-4-2. Section 2. "This Ordinance shall take effect upon publication. Passed, approved and adopted this 6th day of August 2020. /s/Roy D. Buol, Mayor Attest: /s/Kevin S. Firnstahl, City Clerk Published officially in the Telegraph Herald newspaper on the 8th day of August 2020. /s/Kevin S. Firnstahl, City Clerk 1t 8/8