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Playground in Hamburg: According to the regulation, a father would have to wear a mask even if he was alone with his son there
Photo: Daniel Reinhardt / dpa
A lawyer and family man, 41, from Hamburg was bothered by the fact that a mask is currently to be worn on public playgrounds in the Hanseatic city.
He turned to the administrative court - and was right.
The competent chamber 13 obliged the city "to tolerate, for the time being, free of sanctions, that the applicant visits children's playgrounds in Hamburg without complying with the mask requirement".
In other words: The man can leave the mask in his pocket.
The only requirement: to put it in a somewhat simplified manner, there is a maximum of one family and one other on the playground.
The so far unpublished decision (file number: 13 E 942/21) is formally only valid for the lawyer.
In fact, other citizens of the Hanseatic city could now also refer to it.
The decision is thus in line with a decision published shortly before by another chamber of the Hamburg Administrative Court.
In this, the city was obliged to tolerate jogging without a mask for the applicant there, even on weekends or public holidays in particularly frequented places.
However, both decisions are not yet final;
the city has already announced that it will appeal against the jogger decision.
Playground instead of kindergarten
In his brief to the administrative court, the lawyer described his situation: With his three-year-old son and his pregnant partner, he often visits playgrounds near his apartment, and he also makes trips to playgrounds in the area.
Often also during the week, also in the mornings, because his son cannot currently be looked after in kindergarten according to the Hamburg Corona Containment Ordinance.
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Mask requirement in Hamburg: Tipped a second time
Photo: Markus Scholz / dpa
The stay on the playgrounds lasts two hours, sometimes longer.
“At no time in the past” - not even “in good and warm weather” - he noticed “crowds of people” on these playgrounds.
The prescribed minimum distance of 1.5 meters is easy to maintain.
There are 750 playgrounds in Hamburg.
The closest playground, at least 500 square meters in size, is hardly used even on weekends, and there are never more than three or four children playing with supervisors.
But the Corona Containment Ordinance of the Free and Hanseatic City requires that "persons present with custody or authorized supervision" as well as "persons who have reached the age of 14" must wear mouth and nose protection on public and even on private playgrounds - even if they adhere to the distance requirement that applies anyway.
This is what it says there in Section 20 Paragraph 6. And a violation is punishable by a fine.
That did not make sense to the lawyer: Accordingly, he and his partner always had to wear a mask on playgrounds, regardless of the number of people present.
So even when he is "alone as his son's companion" on a playground in the immediate vicinity of his apartment.
The lawyer argued: Even if the ban on entering a playground without a mask as an adult should "prove to be proportionate for individual playgrounds", it would turn out to be a general ban, with regard to all playgrounds in the Hanseatic city, as "too general, undifferentiated and therefore disproportionate. "
"Violated in his general personal right"
The city, on the other hand, pointed out that if the mask requirement only applied to selected playgrounds, this would mean that visitors would concentrate on those playgrounds where the mask requirement did not apply.
The three judges of the chamber followed this argument insofar as they opted for "a uniform treatment of all playgrounds".
Nevertheless, they complied with the lawyer's request by obliging the city to differentiate according to the people present.
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Parents with child on a public playground (symbol picture): Without a mask, with their own family or at most one other family
Photo: Christoph Soeder / DPA
In any case, the father is said to be "violated in his general personal rights" in that he is "obliged to wear a mask" even if he is either alone with his son in a playground or if only a limited number of people are present, for who are expressly allowed to meet under the regulation, namely a maximum of five people from one family, or a maximum of two households in the case of non-relatives.
Children under the age of 14 do not count.
The decisive consideration of the court: In other public places, such as green and recreational areas, such a group of people should also meet without maintaining distances or wearing a mask.
But one could "see no difference to such a meeting if it instead takes place in a playground and there are no other people there at the same time," the three judges wrote in their decision: "The contact between the two families and the children playing and the associated potential risk of infection is identical «.
But when two families are friends with their children on a playground in the Hanseatic city and only one other person aged 14 and over is added, the following still applies: Either someone has to get down from the playground - or for the older ones: mask up.
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