Public health expert says new statewide mask mandate still has a loophole

HONOLULU (KHON2) — The new statewide mask mandate issued Monday eliminates some confusion by having the same exceptions for all counties. But some people say it’s not much better because certain provisions make it hard to enforce.

Violators can be charged a misdemeanor and face up to a year in jail and a $5,000 fine. That’s been the biggest knock on the mask mandate. There’s also the exception that if you are outdoors and stay six feet away from other people, you are not penalized. Some public health experts say this provides a big loophole.

“All the person would have to do is go to court and say, ‘Your honor, nobody was within six feet of me. Therefore I did not have to wear a mask,'” said Tim Brown, East-West Center Senior Research Fellow.

Brown adds that state lawmakers should go into special session, which is needed to change the law so violators can be issued a fine. He says the current penalty is not practical.

“Because it tends to make these judges throw these cases out of court because they don’t intend to pose any penalties like that. Instead we really need to move to a simple fine of $100 or $150,” he said.

If a person is cited for not wearing a mask, they will get a court date and prosecutors will then examine the case and decide whether to dismiss it, strike a plea bargain or prosecute. Defense attorney Victor Bakke says nearly all of his cases have been dismissed.

“And that’s the problem that we have with the law is that there are a lot of people that just didn’t know or didn’t understand or thought they were actually complying with the law,” he explained.

He says the current penalty leaves it up to the prosecutors to make the judgement call. But allowing violators to get fined would make it easier for police and prosecutors. It would also help the City.

“If you were to make it just a fine I think the city would get a lot of money and it would still get the message across. By reducing this to an infraction, you would, I think, get a lot more cooperation from the public,” said Bakke.

The six-feet exception was already in the Oahu Emergency Proclamation before the mandate was changed. Mayor Kirk Caldwell says he wanted to leave it in for those walking where it’s isolated. He says the new mandate now calls for joggers and walkers to wear a mask, but not if they can keep six feet away from other people.

“So I think we should be wearing our face coverings because it’s too hard to take it on and off. That’s what the order requires,” added Caldwell.