Bar Owners To The Rescue

It's a failure of government when businesses have to set and administer public policy.

I have griped for years about the lack of public toilets in the U.S. As Emily Stewart recently pointed out, in Corporations aren’t going to save America, companies have stepped in to wallpaper over this public policy failure:

Starbucks is sort of America’s bathroom. In cities like New York, where public restrooms are hard to come by, it’s the de facto spot to stop and pee. Mike Bloomberg, who tried to set up a network of public toilets when he was mayor, once reportedly shrugged that perhaps “there’s enough Starbucks” to address the city’s bathroom needs anyway.

But Starbucks is an imperfect public toilet because providing a public toilet is not the point of Starbucks. It has tried in the past to limit its facilities to employees, or, at the very least, to require people using those facilities to buy something first. That proved to be a problematic system after employees at a Philadelphia Starbucks in 2018 called the police on two Black men who asked to use the bathroom while waiting for a business associate. And so, the coffee giant has begrudgingly accepted its fate as many passersbys’ emergency loo.

The solution is far from ideal. But in many places in the US, there aren’t many immediate alternatives. The government has failed to meet a very basic biological need, and so a private company fills part of the gap.

Or, the government has failed to make effective public policy, and Starbucks grudgingly steps in. (Note: I live in Beacon NY, which has no Starbucks, just numerous small, independent restaurants with ‘no public bathrooms’ on their entrance windows.)

But we seem resigned to the Starbucks solution in this case, and maybe in the case of a resurgence of COVID, too. Health networks and hospitals are requiring health care workers to get vaccinated (or be subject to frequent testing). Many teachers’ unions are in favor of a similar policy in schools.

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President Biden has begun to require that federal employees in many agencies get vaccinated or frequently tested, but strangely, not the military, who are commonly vaccinated for a wide variety of diseases when stationed overseas. He seems averse to mandating vaccination, although the federal and state governments clearly have the power to do so, as ruled by the U.S. Supreme Court in 1905 (Jacobson versus Massachusetts) and 1924 (Zucht v. King):

Justice John Marshall Harlan wrote [in 1905] about the police power of states to regulate for the protection of public health: “The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts,” Harlan said “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”


When a separate question of vaccinations—state laws requiring children to be vaccinated before attending public school—came up in 1922 in Zucht v. King, Justice Louis Brandeis and a unanimous court held that Jacobson “settled that it is within the police power of a state to provide for compulsory vaccination” and the case and others “also settled that a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.” 

But states have not stepped up to mandate vaccinations, nor to require those adults who refuse vaccination to be quarantined.

The San Francisco Bar Owner Alliance — a group representing 500 bars in San Francisco — are moving toward a Starbucks solution, taking the public good into their own hands. Members of the alliance will soon require customers to prove they are vaccinated or test negative for COVID for entry. As reported by Taylor Bisacky,

So, this is only the latest example of businesses making policy decisions — or instituting public good — that you might reasonably expect governments to undertake. In our situation in the U.S. today, governments are either split by partisan animosity so great that the public good is pushed aside for political purposes, or are simply unwilling to act on the authority that the Supreme Court has ruled on, time and again.

In fact, elected officials seem blind to their own authority, claiming that individuals have the right to refuse to be vaccinated. The Supreme Court does not agree. And neither does the SF Bar Owners Alliance.

Let’s hope that more bars, restaurants, movie theaters, pharmacies, stores, beauty salons, health clubs, and, yes, Starbucks, demand that would-be patrons vaxx up or stay home. Companies can also require employees to get vaccinated to enter the office.

If we wait for the States to take action, it could be too late to save the anti-vaxxers and vax-hesitant from themselves, and too late for the unvaccinated school-age kids to be afforded the protections that we should be providing them.