1 APPROVED AS TO FORM AND LEGALITY
CITY ATTORNEY’S OFFICE
OAKLAND CITY COUNCIL
ORDINANCE NO. C.M.S.
INTRODUCED BY COUNCIL MEMBER DAN KALB
ORDINANCE A MENDING OAKLAND MUNICIPAL CODE CHAPTER
8.68 BY: (1) DELETING THE REQUIREMENT FOR PROOF OF A COVID- 19 VACCINATION (PROOF OF COVID VACCINATION) FOR PATRONS AT THE FOLLOWING INDOOR PUBLIC LOCATIONS:
(A) ESTABLISHMENTS OR EVENTS WHERE FOOD OR DRINK IS
SERVED INCLUDING RESTAURANTS, BARS, COFFEE HOUSES,
CLUBS, AND BANQUET HALLS; (B) ENTERTAINMENT VENUES,
THEATERS, CONCERT VENUES, MUSEUMS, AND RECREATION
FACILITIES; (C) GYMS, FITNESS CENTERS AND YOGA STUDIOS; (D) CITY HALL; AND (E) LARGE INDOOR EVENTS AT CITY AND
PRIVATELY- OWNED FACILITIES ; AND (2) REQUIRING FACE
MASKS FOR PATRONS AT LARGE INDOOR EVENTS AT CITY AND
PRIVATELY-OWNED FACILITIES
WHEREAS, COVID-19 has killed over 6.2 million people around the world, over 1,000,000 in the United States and over 89,000 in California; and
WHEREAS, here in Oakland, we have experienced over 76,000 cases of COVID-19 involving over 500 deaths; and
WHEREAS, on July 27, 2021 the Center for Disease Control and Prevention (CDC) updated guidance for fully vaccinated people infected with the Delta variant may be more likely to infect others than vaccinated people infected with other known variants. The CDC recommended that fully vaccinated persons wear a mask in public indoor settings, in addition to its recommendation that unvaccinated and not fully vaccinated persons wear a mask in public indoor settings, in addition to its recommendation that unvaccinated and not fully vaccinated persons wear a mask in public indoor settings; and
WHEREAS, on August 5, 2021 the State Public Health Officer issued an Order requiring vaccination of workers in ‘high risk’ healthcare settings; and
2 WHEREAS, unvaccinated persons are somewhat more likely to get infected and spread the virus, and most current hospitalizations and deaths are among unvaccinated persons; and
WHEREAS, on September 28, 2021, the California State Public Health Officer issued an order requiring the vaccine at all adult care facilities and direct care workers as adult and senior care facilities and settings where direct care and services are provided, are high-risk settings where COVID-19 transmission and outbreaks can have severe consequences; and
WHEREAS, the federal Centers for Disease Control CDC, the California Department of Public Health and the Alameda County Health Officer agree that COVID-19 poses a serious risk, particularly to individuals who are not fully vaccinated; and
WHEREAS, medical professionals, scientists, and epidemiologists agree that vaccines are proven the most effective in preventing infection and the subsequent spread of COVID-19, and to reduce hospitalizations and death; and
WHEREAS, the City Administrator has implemented a Mandatory Vaccination Policy that requires all City of Oakland (City) employees to be fully vaccinated and verify that status to the City no later than November 29, 2021; and
WHEREAS, COVID-19 remains a significant challenge in the City; and
WHEREAS, on January 3, 2022, the Oakland City Council (City Council) adopted an emergency ordinance adding Oakland Municipal Code Chapter 8.68 to require Proof of a Covid-19 Vaccination (Vaccine Proof Requirement) for patrons at the following indoor public locations: (1) establishments or events where food or drink is served including restaurants, bars, coffee houses, clubs, and banquet halls; (2) entertainment venues, theaters, concert venues, museums, and recreation facilities; (3) gyms, fitness centers and yoga studios; (4) senior adult care facilities and city senior center programs; (5) City Hall; and (6) large indoor events at City and privately-owned facilities; and
WHEREAS, on February 28, 2022, the State of California updated the mask guidelines and Alameda County is aligned with those guidelines. The new State of California guidance recommends that all persons, regardless of vaccination status continue to wear masks; and
WHEREAS, on April 18, 2022 Alameda County announced that it will maintain current quarantine requirements as defined by the Centers for Disease Control and Prevention (CDC).
People who are not vaccinated or not fully vaccinated should stay home and away from other people for at least 5 days after their last contact with a person who has COVID-19. They may leave quarantine after day 5 if they test negative on or after day 5, if they have no symptoms. People who are symptomatic or who test positive must follow isolation requirements; and
WHEREAS, on April 21, 2022, the Centers for Disease Control and Prevention COVID Data Tracker listed the COVID-19 Community Level as Low for Alameda County; and
WHEREAS, the Centers for Disease Control and Prevention COVID-19 Community Level does not apply in healthcare settings such as nursing homes; and 3 WHEREAS, businesses and facilities are allowed to impose proof of COVID vaccination and masking requirements to enter into their respective establishments regardless of the provisions in the Oakland Municipal Code or any related County health order; and
WHEREAS, certain types of masks (N95/KN95/KF94) are considered by public health experts as providing greater protection from the COVID virus; and
WHEREAS, on February 11, 2022, the Centers for Disease Control and Prevention published the findings of a study that show use of a mask in indoor settings protects against COVID-19 by lowering the odds of testing positive by as much as 83%; and
WHEREAS, as of April 20, 2022, the California Department of Public Health strongly recommends all persons regardless of vaccine status wear masks in indoor public settings; and
WHEREAS, the Centers for Disease Control and Prevention have made clear that people who are older are more likely to become very sick with COVID-19; and
WHEREAS, the California Department of Public Health has indicated that “mega events” including indoor events with more than 1,000 people, are risker than other events; and
WHEREAS, the City Council finds and declares that this update to Oakland Municipal Code Chapter 8.68 is required for the immediate protection of the public peace, health, and safety for the following reasons: (1) eliminating the Vaccine Proof Requirement for the most of the locations and events subject to the rule is warranted in light of current COVID-19 case levels; (2) keeping the Vaccine Proof Requirement for Senior Adult Care facilities and City Senior Centers is warranted in order to protect seniors, an age group especially susceptible to the harm of COVID-19; and (3) requiring masks at Large Indoor Events is warranted due to the effectiveness of using face masks to mitigate against the spread and harm of COVID-19 in such settings.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals.
The City Council finds and determines the foregoing recitals to be true and correct and hereby makes them part of this Ordinance.
SECTION 2. Oakland Municipal Code Chapter 8.68 is hereby amended to add, delete, or modify sections as set forth below (chapter and section numbers and titles are indicated in bold type; additions are indicated by underscoring and deletions are indicated by strike -through type; portions of the regulations not cited or not shown in underscoring or strike -through type are not changed.
Chapter 8.68 Requirement of Proof of a COVID -19 Vaccination for Patr ons at Certain Indoor Public Locations and at Large Indoor Events 4 8.68.010 – Title.
This Chapter shall be known as the “Requirement of Proof of a COVID-19 Vaccination for Patrons at Certain Indoor Public Locations and at Large Indoor Events Ordinance.”
8.68.020 – Definitions.
A. City means the City of Oakland
B. Citation means either a Civil Penalty or an Administrative Citation issued pursuant to Chapters 1.08 and 1.12 respectively, of the Oakland Municipal Code and does not include a criminal penalty.
C. Covered Location means any of the following public indoor locations in the City:
1. Establishments or events where food or beverages are served, including, but not limited to, restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts whether freestanding or contained within larger businesses such as a grocery store or market hall, breweries, wineries, distilleries, banquet halls, and hotel ballrooms. A “Covered Location” does not include a private meeting of fewer than 50 people where food or beverage is provided incidental to the meeting, such as a workshop or seminar;
2. Gyms and fitness venues, including, but not limited to: gyms, recreation facilities, fitness centers, yoga, Pilates, cycling, barre, and dance studios, boxing and kickboxing gyms, indoor fitness boot camps, and other facilities used for conducting indoor group fitness classes. Recreational facilities do not include recreation centers in City Parks operated by the City, except classes held at City recreation centers that are exclusively for seniors age 60 and over are considered as a covered location;
3. Entertainment and recreation venues, including, but not limited to, movie theaters, music and concert venues, live performance venues, commercial event and party or wedding venues, sports arenas,exhibition halls, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, museums, play areas, pool and billiard halls, and other indoor recreational game centers;
4. Senior Adult Care Facilities and City Senior Centers.
A Covered Location does not include any location that does not have an Indoor Portion. A Covered Location does not include any location that is required by a Federal, State, Alameda County, or other local public agency requirement to check proof of COVID-19 vaccination status prior to providing indoor service.
Nothing in this Chapter shall be interpreted to preclude indoor locations in the City that are not included in the above list from issuing similar requirements or more stringent requirements than required by this Chapter
5 D. COVID-19 means coronavirus disease 2019, the infectious disease caused by the SARS CoV-2 virus that resulted in a global pandemic, including variants thereof.
E. COVID-19 Vaccine means a vaccine authorized to prevent COVID -19 by the United States Food and Drug Administration (FDA), including byway of an emergency use authorization, or by the World Health Organization (WHO).
F. Face Mask means a mask intended to trap respiratory droplets that are released when the wearer talks, coughs or sneezes and that acts as a barrier to protect the wearer from inhaling droplets released by others.
G. F. Full Vaccination/Fully Vaccinated means 14 or more days after completing the entire recommended series of vaccination with a COVID-19 Vaccine. Currently, an individual is considered Fully Vaccinated at least two weeks after receiving a second dose of the Pfizer or Moderna COVID-19 Vaccine or two weeks after receiving the single dose of the Johnson & Johnson Janssen COVID-19 Vaccine.
H. G. Individual Eligible for a COVID-19 Vaccine means a person for whom a COVID-19 Vaccine is authorized for use by the FDA, including by way of an emergency use authorization or, in the case of a foreign visitor or traveler, a person for whom a COVID- 19 Vaccine is authorized by the WHO.
I. H. Indoor Portion means any part of a Covered Location, or City Hall with a roof or overhang that is enclosed by at least three walls, except that the following will not be considered an Indoor Portion: (1) a structure on or adjacent to the sidewalk or roadway if it is entirely open on the side facing the sidewalk; and (2) an outdoor dining structure for individual parties, such as a plastic dome, if it has adequate ventilation (such as the equivalent of twenty-five percent or more of the sides of the structure are open) to allow for air circulation.
J I. Large Indoor Event means an indoor event with more than five hundred one thousand (5001000) attendees. A Large Indoor Event includes conventions, conferences, expos, concerts, shows, nightclubs, sporting events, live events and entertainment, fairs, festivals, and large private events or gatherings such as weddings. Large Indoor Events may have either assigned or unassigned seating, and may be either general admission or gated, ticketed, and permitted events. Large Indoor Events do not include government-sponsored public meetings.
K J. Patron means an Individual Eligible to Receive a COVID-19 Vaccine who enters, attends an event, visits someone, or purchases good or services at a Covered Location, City Hall, or a Large Indoor Event. A Patron does not include a resident of a Senior Adult Care Facility.
L K. Photo Identification means an original or copy of an identification card, including:
6 a. Driver’s license;
b. Government issued identification card;
c. School or work identification card;
d. Passport.
M L. Proof of Recent Negative COVID-19 Test means a printed document, email or text message displayed on a phone, from a test provider or laboratory that shows results of a polymerase chain reaction (PCR) or antigen COVID-19 test that either has Emergency Use Authorization (EUA) by the U.S. Food and Drug Administration or is operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services, that was conducted within 72 hours before entry into a Covered Location, City Hall, or Large Indoor Event. The printed document, email, or text message must include the person’s name, type of test performed, date of the test, and negative test result.
I. M. Proof of Vaccination means one of the following demonstrating proof of Full Vaccination that is cross-checked with a Patron’s Photo Identification:
a. A vaccination card issued by the United States Centers for Disease Control and Prevention (CDC) COVID-19 vaccination card, which includes the name of the person vaccinated, type of vaccine provided, and date last dose administered, or similar documentation issued by a foreign governmental agency;
b. A photo of a vaccination card (both sides), compliant with Subsection
8.68.020.M.1, above, as a separate physical photograph or stored on a phone or electronic device;
c. Documentation of vaccination from a licensed healthcare provider; or
d. A personal digital COVID-19 vaccine record issued by the State of California or similar documentation issued by another state, local, or foreign governmental jurisdiction, or by a private company. California residents can visit the State of California’s Digital COVID-19 Vaccine Record website at myvaccinerecord.cdph.ca.gov and download a QR Code on a phone.
7 J. N. Self-Attestation Document means a letter signed by the patron, under penalty of perjury stating that the patron has a sincerely held religious belief that qualifies the Patron for an exemption.
K. O. Senior Adult Care Facility means a housing arrangement for persons sixty (60) years of age and over, where twenty-four (24) hour non-medical care and supervision is provided, more commonly referred to as “assisted living facilities.”
L. P. Verification of a Medical Exemption means documentation signed by a licensed medical provider indicating the Patron is excused from receiving any COVID -19 vaccine due to a medical condition or disability recognized by the Food and Drug Administration or Centers for Disease Control as a contra-indication to COVID-19 vaccination.
8.68.030 - Proof of Vaccination Required for a Patron to enter Indoor Portion of a Covered Location.
A. Beginning on January 15, 2022, a Covered Location shall display prominently in at least two locations on its premises, visible to Patrons prior to entrance, an advisory notice informing Patrons that, beginning on February 1, 2022, Proof of Vaccination is required to enter any Indoor Portion of a Covered Location.
B. Except as provided below, beginning on February 1, 2022, a Covered Location shall require each Patron twelve (12) years or older to provide Proof of Vaccination. For each Patron eighteen (18) years or older a Covered Location must also cross check a Patron’s Proof of Vaccination with a Photo Identification. A Covered Location may require such proof either before a Patron enters an Indoor Portion of a Covered Location or upon the Patron’s first interaction with staff.
1. A Patron may be exempt from the requirements of this section if they are entitled under any applicable law to a reasonable accommodation for a medical condition. To qualify, a Patron must demonstrate eligibility by providing the Covered Location with:
a. Verification of Medical Exemption; and
b. Proof of a recent Negative COVID-19 Test and Photo Identification.
2. A Patron who does not provide Proof of Vaccination and who does not qualify for an exemption may use the portion of a Covered Location that is not an Indoor Portion. A Patron who does not provide Proof of Vaccination may be allowed to enter an Indoor Portion of a Covered Location for brief and limited periods of time to use the restroom, order, pick-up, or pay for food or drink “to-go,” or perform necessary repairs, provided that the Patron wears a well-fitting mask at all times while in the Indoor Portion of the Covered Location. To the extent feasible, a Covered Location may offer service outside for a Patron who does not provide Proof of Vaccination , including curbside pickup, drive thru delivery, and outdoor seating and dining.
8 C. A Covered Location must develop and keep a written record describing the protocol for implementing and enforcing the requirements of this Chapter. Such records must be kept for one year and made available, upon request, to the local public health jurisdiction or the City.
8.68.040 - Proof of vaccination or Proof of Negative COVID-19 required to enter City Hall.
A. Beginning on January 15, 2022, City Hall shall display prominently on its premises, visible to any persons upon entrance, an advisory notice that, beginning on February 1, 2022, Proof of Vaccination or Proof of recent Negative COVID -19 is required to enter any Indoor Portion of City Hall.
B. Beginning on February 1, 2022, as specified below, Patrons shall provide Proof of Vaccination upon entering an Indoor Portion City Hall. A City employee or contractor (City Personnel) as designated by the City Administrator at City Hall is required to check Proof of Vaccination for Patron aged twelve (12) years of age or older. For Patrons aged eighteen (18) years and older entering City Hall, City Personnel must also cross check the Patron’s Proof of Vaccination with a Photo Identification.
1. A Patron may be exempt from the requirements of this section if they are entitled under any applicable law to a reasonable accommodation for a medical condition or restriction or a sincerely held religious belief. To qualify, a Patron must demonstrate eligibility as follows:
a. To be eligible medical exemption, the Patron must provide Verification of Medical Exemption; or
b. To be eligible for a religious, the Patron must provide a Self-Attestation Document demonstrating a sincerely held religious belief.
2. A Patron who does not provide either Proof of Vaccination or the exemptions provided above will be provided alternative arrangements for access to government services, to be determined on a case-by-case basis, including, but not limited to, online or remote service, service outdoors, or providing Proof of recent Negative COVID -19 Test prior to entering any Indoor Portion of City Hall and wearing a mask.
3. This requirement for City Hall access does not apply to members of the public attending a City Council meeting or other meeting subject to the Brown Act and Sunshine Ordinance. In lieu of a vaccination proof requirement for such meetings, the City may impose appropriate measures that are in compliance with the Brown Act and Sunshine Ordinance which may include limitations on capacity, temperature checks, social distancing, mask requirements, and the provision of equivalent viewing and public comment options.
9 C. This section does not apply to any individual City employee, intern, or volunteer subject to the City’s COVID-19 Vaccination Requirement for Employees, Interns, and Volunteers (City of Oakland Administrative Instruction 593).
8.68.5040 - Proof of Vaccination Face Mask Required to Attend a Large Indoor Event.
Beginning on February 1, 2022, aAn operator or host of a Large Indoor Event must verify that every Patron aged twelve (12) years or older, must wear a face mask to mitigate the spread of COVID -19. Proof of Vaccination or, if qualified for a medical exemption, Proof of recent Negative COVID- 19 Test for each Patron who is twelve years (12) of age or older. For each Patron eighteen (18) years or older, an operator or host must also cross check the Patron’s Proof of Vaccination with a Photo Identification.
A Patron may be exempt from the requirements of this section if they are entitled under any applicable law to a reasonable accommodation for a medical condition. To qualify, a Patron must demonstrate eligibility by providing the Covered Location with:
a. Verification of Medical Exemption; and
b. Proof of a Recent Negative COVID-19 Test and Photo Identification.
D. Operators or hosts of Large Indoor Events must develop and keep a written record describing the protocol for implementing and enforcing the requirements of this Section Chapter. Such records must be kept for one year and made available, upon request to the local public health jurisdiction or the City.
8.68.06050 - Enforcement.
A. An operator of a Covered Location or operator or host of a Large Indoor Event may be issued a Citation for violation of any provision of this Chapter and shall be subject to the enforcement provisions provided pursuant to Chapters 1.08 and 1. 12 of the Oakland Municipal Code.
B. This Chapter shall be enforced beginning February 1, 2022, except that Section 8.68.40 (Face Mask requirement for Large Indoor Events) shall be enforced immediately.
8.68.07060 - Rules and Regulations.
The City Administrator is authorized to promulgate Rules and Regulations consistent with this Chapter for further clarification, implementation, and enforcement of the provisions of this Chapter, including providing additional flexibility measures for City-owned facilities to implement the intent of this Chapter.
SECTION 3. Severability.
A. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Chapter. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase thereof irrespective of the fact that one or more other sections, subsections, clauses or phrases may be declared invalid or unconstitutional.
B. No Conflict with State or Federal Law. Nothing in this ordinance shall be Interpreted or applied so as to create any requirement, power, or duty in conflict with any federal or state law.
SECTION 4. Effective Date and Expiration.
This ordinance shall become effective immediately on final adoption if it receives six or more affirmative votes; otherwise it shall become effective upon the seventh day after final adoption. It shall expire upon the lifting of the City’s Administrator’s Declaration of Local Emergency in response to the spread of COVID-19 that was issued March 9, 2020 and ratified by the City Council on March 12, 2020 pursuant to Resolution No. 88075 C.M.S.
IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES – FIFE, GALLO, KALB, KAPLAN, REID, TAYLOR, THAO AND
PRESIDENT FORTUNATO BAS
NOES –
ABSENT –
ABSTENTION –
ATTEST:
ASHA REED
City Clerk and Clerk of the Council of the
City of Oakland, California
Date of Attestation:
3168210v1
NOTICE AND DIGEST
ORDINANCE AMENDING OAKLAND MUNICIPAL CODE CHAPTER
8.68 BY: (1) DELETING THE REQUIREMENT FOR PROOF OF A COVID- 19 VACCINATION (PROOF OF COVID VACCINATION) FOR PATRONS AT THE FOLLOWING INDOOR PUBLIC LOCATIONS:
(A) ESTABLISHMENTS OR EVENTS WHERE FOOD OR DRINK IS
SERVED INCLUDING RESTAURANTS, BARS, COFFEE HOUSES,
CLUBS, AND BANQUET HALLS; (B) ENTERTAINMENT VENUES,
THEATERS, CONCERT VENUES, MUSEUMS, AND RECREATION
FACILITIES; (C) GYMS, FITNESS CENTERS AND YOGA STUDIOS; (D) CITY HALL; AND (E) LARGE INDOOR EVENTS AT CITY AND
PRIVATELY- OWNED FACILITIES; AND (2) REQUIRING FACE
MASKS FOR PATRONS AT LARGE INDOOR EVENTS AT CITY AND
PRIVATELY-OWNED FACILITIES
This Ordinance (Ordinance) amends Oakland Municipal Code Chapter 8.68 by: (1) deleting the requirement for Proof of a COVID -19 Vaccination (Proof of COVID Vaccination) for Patrons at the following indoor public locations:(A) Establishments or Events where food or drink is served including Restaurants, Bars, Coffee Houses, Clubs, and Banquet Halls; (b) Entertainment Venues, Theaters, Concert Venues, Museums, and Recreation Facilities; (c) Gyms, Fitness Centers and Yoga Studios; (d) City Hall; and (e) Large Indoor Events at City and privately -owned facilities; and (2) requiring Face Masks for Patrons at Large Indoor Events at City and privately-owned facilities. The Ordinance changes the definition of a Large Indoor Event from that with more than five hundred attendees to that with more than a thousand attendees. It does not change the existing requirement for Proof of COVID Vaccination at Senior Adult Care Facilities and City Senior Centers.