The County’s outdated mask mandate can’t keep up with current events

OPINION

BY JEFF CHILDERS

“Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.” – Albert Einstein

Trying to fix the outdated, unenforceable mask mandate is like trying to fix a rusty 40-year-old tractor with a broken axle by replacing the spark plugs. To see what happens when you add constantly-changing circumstances to an unenforceable law, just look at the recent County Commission meeting where dozens of angry citizens sounded off about the County’s most recent attempt to keep the mask mandate relevant and rational. 

The mask mandate’s original problem, its original sin, has always been its unworkable enforcement. And it’s only getting worse. The mandate relies on penalties that are now prohibited by the state, fines that can no longer legally be collected, punishments that have now been forgiven, and the latest addition — a well-intentioned but discriminatory vaccine-based mask exemption — is likely pre-empted by the Governor’s most recent executive order.  The mandate has always just been a recommendation shaped like a toothless law. Spark plugs won’t help.

Even before the state banned collecting fines for mask violations, the mandate was never really enforceable, not in any practical way. There just aren’t enough code enforcers to keep chasing tipsters’ reports of mask violations from one end of the County to the other. Entire cities within the County have refused to recognize the mask mandate. Entire cities. Without a city’s cooperation, the County can’t enforce the mandate there. Even more complicated, just because someone is unmasked doesn’t necessarily mean they are in violation — they might be medically exempted. Code enforcers have the nigh-impossible job of figuring it all out on a case-by-case basis, from city to city, from one end of the county to the other. And their job is fraught with difficulty anyway because of the highly-protected nature of private medical information.

Good grief, as Charlie Brown would say.

Nor can private businesses legally force their customers to wear masks. They risk running afoul of federal privacy laws whenever they challenge unmasked customers, not to mention creating unpleasant conflicts with the very people they’re also trying to sell something to. If a business refuses to serve an unmasked customer, federal law requires the business to provide its customer with a ‘reasonable accommodation,’ which means even more labor and cost, not to mention balloons the threat of a bad Google review. Sure, a business can refuse to serve someone, but then, why does the business even exist in the first place? It isn’t to NOT sell things to customers, that’s for certain.

Nobody disputes that unenforced or unenforceable laws legitimize lawlessness. 1920’s Prohibition was a colossal mistake that manufactured a massive crime wave and enriched organized crime. The largely-unenforceable liquor laws taught citizens to enjoy being lawless. Rates of alcoholism tripled. Hypocritical violations by politicians and well-connected people created burning resentments. Citizens routinely broke the Prohibition laws, and we even have a word now for the place where you go to break the law and imbibe illegal alcohol: a speakeasy. There were 30,000 speakeasies in New York City alone after a few years. And don’t even get me started about the federal government’s ill-conceived plan to intentionally poison industrial alcohol — spurred on by public health experts — that killed more than 10,000 American citizens.

Now, a century later, the word “speakeasy” suggests a fun night out, but “Prohibition” is practically a curse word. That tells you everything you need to know about how badly that particular Wilsonian social experiment backfired.

For “some reason,” nearly 20 states have now abandoned mask mandates. And some Florida leaders — outside Alachua County — seem to get the gist of Einstein’s point. Only about two weeks ago, the Sarasota County Commission rejected a mask mandate — for the second time. Sarasota’s Vice Mayor Erik Arroyo explained his vote against the law this way: “We support people wearing masks… [but] We’re just not going to create an unenforceable law.” Well, of course.

But the County’s mask law, originally drafted before vaccines, treatments, and herd immunity, has a new problem. As the late stages of the epidemic play out, the unenforceable mask mandate is making less and less sense. COVID-19 patients in local hospitals are down more than 70% since the peak in January. Remaining cases are younger and milder than ever. More than 80% of Alachua County’s at-risk seniors have had at least one dose of the vaccine, and we have reached a stasis point that Paul Myers, Administrator for the Florida Department of Health in Alachua County, recently called “saturated.” Based on CDC estimates, at least that many more folks have now recovered and have acquired a natural immunity to the virus. Finally, Florida has now opened up vaccination to anybody that feels they are at risk.

It’s not just the shifting health landscape that’s eroding the logic of the mask mandate. The legal landscape is changing, too. Last Friday, Florida banned so-called “vaccine passports.” The order notes that some Floridians have already acquired natural immunity to COVID-19 and don’t need to be vaccinated. It points out the obvious problem: privileging one class of citizens based solely on their medical status as vaccinated or non-vaccinated is discriminatory and unfair, not to mention irrational, unethical, and immoral.

That’s the real problem. If the County had just sensibly retreated and gotten into step with the rest of the state by issuing a strong recommendation instead of a mandate, it wouldn’t be in the fix it is in now. But by creating an unenforceable, unpunishable law that can’t possibly keep up with the pace of current events, it turns otherwise law-abiding citizens into heroic outlaws in their own eyes and into reckless scofflaws in the eyes of their compliant neighbors. 

The County, the City of Gainesville, and the School Board have all gotten themselves into an impossible mess with their various mask mandates, all originally based on circumstances that were much different than they are now. As more and more folks acquire natural immunity and vaccine-induced immunity, the language in the antiquated mask mandates becomes less and less logical. When should healthy vaccinated or recovered folks wear masks, if at all? Can they mix together maskless? Can they mix with unvaccinated people? Under what circumstances? What about vaccinated people and folks with naturally-acquired immunities—can they socialize? When infection rates are this low, should anyone be forced to mask up? The County’s recent deeply-unpopular adjustment to its mask mandate was its attempt to try to make the rules more rational and more consistent with the current set of issues, by creating a single tentative exception for vaccinated people. 

Instead, the County stepped on a land mine and blew its foot off. The new exception to mandatory masking discriminates against everyone with naturally-acquired immunity, for no rational reason. It is prejudicial on its face. And, as more and more people develop natural as well as vaccine-induced immunities, it will be harder and harder to draft rules to account for every possible combination of folks and situations and also simultaneously comply with the state’s laws. The mask mandate might metastasize into a hundred pages of complicated flow charts.

Good luck enforcing that.

Instead, the County should just adopt a straightforward, common-sense approach based on a meaningful metric. Not the “1% positivity ratio” suggested by some well-intentioned but deeply-confused local researchers. Positivity ratios are poorly understood and inconsistently calculated and have different meanings depending on the makeup of the population currently being tested. The positivity ratio changes dramatically when several thousand asymptomatic university students are being screened. Without students, the test pool is mainly folks with symptoms who want to find out if they have COVID-19. Whenever UF changes or drops the mandatory student testing program (and exemption from testing is the carrot they’re offering to persuade students to get vaccinated), the positivity rate will mean something completely different.

This all started with hospitalizations, and it should end with hospitalizations. The County should cut through the miasma of muddlement and just say that whenever the number of COVID-19 patients in local hospitals is under 15% of total bed capacity, the state of emergency is lifted, and no more mandates apply. Done. Easy-peasey.

That’s the simplest and easiest way for the County to get itself out of the slough of trying to draft around the increasingly complex web of relationships between vaccinated, unvaccinated, and recovered folks, not to mention those with pre-existing immunities, and the constantly-moving medical and legal landscapes. If the County keeps on re-drafting increasingly convoluted mandates in a vain effort to keep pace with the evolving situation, it will only create more unenforceable laws, lawlessness, unanticipated problems, and righteous anger from citizens who get left behind, whether accidentally or not. It’s time to end the drafting arms-race. We don’t need Einstein to get us out of this mess. Just keep it simple.