• Mount Pocono Boro*

Taking a Look at COVID-19 Mitigation Enforcement Roles

Updated: Jul 30, 2020

HARRISBURG (JUL 29 2020) – The Wolf Administration has stressed the importance of mask-wearing as paramount to helping stop the spread of COVID-19. They cite numerous public health studies and experts who say that, combined with social distancing, mask wearing is the fastest and surest way to help protect others from the disease and reduce restrictions on business, gatherings, and schools.

Wolf, the secretary of health, and other agencies, have issued a series of orders since March with the stated goal of protecting Pennsylvanians from COVID-19, which has claimed more than 7,000 lives in the state. "Throughout the commonwealth, businesses and residents of Pennsylvania are doing their part to prevent the spread of COVID-19 and keep themselves, their families, their customers and their communities safe – most notably by wearing masks in all businesses and whenever leaving home," the governor's office said in a statement released today.

“We have been largely successful in our fight against COVID-19 thanks to the hard work and sacrifices of every Pennsylvanian,” said Governor Tom Wolf. “But with a recent and ongoing rise in cases, we must remain vigilant, continue to listen to healthcare professionals and each do our part to prevent this dangerous virus from spreading through our communities.”

Per the Secretary of Health’s order, businesses must require all customers to wear masks while on premises, and deny entry to individuals not wearing masks, unless the business is providing medication, medical supplies, or food, in which case the business must provide alternative methods of pick-up or delivery of such goods.

There are limited exceptions to the mask order, which include those who cannot wear a mask due to a medical condition, those for whom wearing a mask would create an unsafe condition, individuals who would be unable to remove a mask without assistance, individuals under the age of two, and individuals who are communicating or seeking to communicate with someone who is hearing-impaired or has another disability where the ability to see the mouth is essential for communication.

"We want Pennsylvanians to do the right thing. For all those who are claiming an exception who do not have one, they are potentially putting the lives of those they encounter at risk," the statement from the governor's office continued. "Wearing a mask is a non-partisan, non-political statement that you care about the people you encounter and is a sign of kindness and respect."

The current mitigation orders in place include Worker Safety, Building Safety, required mask-wearing, and the July 15 targeted mitigation orders. Along with a focus on voluntary compliance, several state and local agencies are responsible for enforcing these important health and safety mandates.

The governor has asked Pennsylvanians to play a role by appropriately reporting suspected violations of these orders put in place to keep people safe. We've provided links to online reporting portals at the end of this report.

The Secretary of Health’s orders were issued pursuant to the authority granted to her under the law, and it has the force and effect of law. As with all current orders, if citations were to be issued, they would be issued pursuant to Pennsylvania’s Disease Control and Prevention Act of 1955, 35 P.S. § 521.20(a) and The Administrative Code of 1929, 71 P. S. § 1409, which are the same statutory sections that were used for business closure enforcement.

Defining the Statutes

Pennsylvania’s Disease Control and Prevention Act of 1955, 35 P.S. § 521.20(a): Any person who violates any of the provisions of this act or any regulation shall, for each offense, upon conviction thereof in a summary proceeding before any magistrate, alderman or justice of the peace in the county wherein the offense was committed, be sentenced to pay a fine of not less than twenty-five dollars ($25) and not more than three hundred dollars ($300), together with costs, and in default of payment of the fine and costs, to be imprisoned in the county jail for a period not to exceed thirty (30) days.

Administrative Code of 1929, 71 P. S. § 1409: Every person who violates any order or regulation of the Department of Health, or who resists or interferes with any officer or agent thereof in the performance of his duties in accordance with the regulations and orders of the Department of Health, shall, upon conviction thereof in a summary proceeding before a justice of the peace, alderman, or magistrate of the county wherein such violation or offense is committed, be sentenced to pay a fine of not less than ten ($10.00) dollars and costs nor more than fifty ($50.00) dollars and costs, such fine to be paid to the county in which the violation or offense is committed. In default of payment of such fine and costs the offender shall be sentenced to be confined in the proper county jail for a period of 30 days.

Law Enforcement

All local law enforcement agencies in Pennsylvania can enforce the Worker Health and Safety Measures, Building Safety, mask-wearing, and July 15 targeted mitigation orders. The Pennsylvania State Police (PSP) has issued 52 warnings related to orders to date.

The State Police Bureau of Liquor Control Enforcement conducts hundreds of compliance checks each day at licensed liquor establishments to ensure licensees are complying with masking, social distancing and other requirements, in particular the July 15 targeted mitigation orders. Regular updates are posted at psp.pa.gov.

Pennsylvania Liquor Control Board

The Pennsylvania Liquor Control Board has provided guidance to bars and restaurants and is notified of Pennsylvania State Police citations. Depending on the level of infraction, PLCB could suspend a business’s liquor license and further enforcement could put the license at risk.

Department of Health

The Department of Health plays a role in enforcement of all existing orders. Complaints or notices of possible violation received from residents, the Department of Agriculture, or other complainants, are vetted and referred to the proper authority, typically the Pennsylvania State Police or local law enforcement.

Workers are encouraged to first communicate with their employer if they feel they are not being appropriately protected in their workplace. If that does not produce the desired result, a worker can reach out directly to local law enforcement via a non-emergency number, or to the Department of Health and fill out a COVID-19 complaint form, available here. That completed form is vetted and followed up on by the department and, if appropriate, referred to PSP for investigation. If the business location doesn’t fall under PSP’s jurisdiction, PSP refers the complaint to local law enforcement for investigation.

Anyone who feels a business is in violation of the Worker Safety order or Building Safety order may contact local law enforcement or file a complaint with the department.

To date, the department has issued warning letters with the knowledge that its full authority includes fines, and closures if orders are not followed. The department says it continues to receive complaints and send warning letters to businesses that are not complying with the mitigation orders.

Department of Agriculture

The Pennsylvania Department of Agriculture enforces the Secretary of Health’s order as it relates to restaurants and other retail food facilities, including prohibitions or limits on dine-in services and masking requirements through the issuance of warnings and fines.

Since dine-in services have resumed, the department has received complaints surrounding restaurant staff not wearing masks as required, ignoring social distancing and otherwise not adhering to public health restrictions to limit person-to-person spread of COVID-19.

When such complaints are received, the department sends notices to the complainant and the business. These complaints are also referred to the Pennsylvania Department of Health for enforcement. The Department of Agriculture sends inspectors to follow up and may issue warnings and fines to restaurant owners. Complaints regarding concerns at restaurants and retail food facilities can be submitted to the department online.

Local Officials

Local law enforcement received guidance on enforcement of the various COVID-19 orders in place from the Pennsylvania State Police through the PA Chiefs of Police Association. Local police departments have discretion whether to warn or cite a business for violations. Citations may be written under the Administrative Code of 1929 71 P. S. § 1409 and/or the Disease Prevention and Control Law of 1955 35 P.S. § 521.20(a). The decision whether to issue a warning or a citation is made on a case-by-case basis and determined by the unique circumstances of each encounter.

Monroe County DA Refuses Enforcement

In May, Monroe County District Attorney David Christine announced he would not enforce the public health and safety measures ordered by the governor and secretary of health. As a result some local police departments have reportedly declined to follow up on compliance complaints, citing the DA's instructions. The DA did not respond to a request for comment.

That's a complicating factor for the County, which was a hot spot for the virus through nearly all of the surge, with the highest per capita rate of infection in the state. The County saw daily cases as high as 90 during that period. Lately, with social distancing and universal masking, daily new cases are usually in the single digits.

But the DA is not the only agency with enforcement authority. The state Attorney General has the authority to prosecute violations anywhere in the commonwealth, regardless of the personal opinion of the local district attorney. So, if the AG chooses, his office can prosecute offenders in Monroe County, despite the DA's stance. The Pennsylvania State Police similarly have statewide jurisdiction to investigate and prosecute violations of law. They are responsive to the Governor and do not need the consent of either the local DA or police to act. However, the State Police, as a matter of comity, the State Police do not overrule local police department decisions on charging and prosecution.

State regulatory agencies also have the authority, independent of local politicians and police, to enforce the COVID mitigation laws against businesses under their jurisdiction. This includes most professionals, salons, beauticians and barbers, and many others.

There is also the potential for civil action against violators from persons claiming to have been harmed by their violation. A business operating in violation of law could be found strictly liable under the theory of "negligence per se", which can apply when a business fails to abide a public safety regulation. Private Insurance Companies

Businesses need also be concerned about their business liability coverage -- and not just for claims related to COVID-19. The typical commercial or business insurance policy contains a clause requiring the business to operate in compliance with all applicable laws, ordinances, and regulations. Insurance companies may use that clause to deny coverage for any claim by a business which does not comply with the COVID-19 mitigation orders. This includes the right to deny coverage to hazards, such as fires, or for personal injury, such as slip and fall cases, even though those claims bear no relationship to the COVID-19 mitigation orders. Violation of the lawful operation requirement in a business policy can act to void the entire policy. That was the message delivered back in May by the Pennsylvania Insurance Commissioner Jessica Altman, who reminded businesses of the importance of complying with Governor Tom Wolf and Department of Health Secretary Rachel Levine’s orders. In addition to the critical public health objectives, Commissioner Altman warned non-compliant businesses defying the governor and secretary’s business closure orders that they could lose coverage under provisions that exclude coverage for businesses or individuals engaging in illegal acts or conduct. “Businesses and residents rely on insurance coverage to protect them from liability, pay for covered losses, and compensate those who may be injured or harmed,” said Altman. “It is the duty of every business and resident in Pennsylvania to ensure that they and the public at large are provided with the maximum level of protection afforded by insurance. Any actions that could potentially create coverage gaps are the antitheses of the civil duty required of all residents during these times of emergency.”

The bottom line is that businesses need to look beyond a local political office, such as the district attorney, for the potential legal and financial implications of defying health & safety orders during this public health crisis.

Important Links

COVID-19 Guidance and Resources Worker Safety order Building Safety order Mask-wearing order July 15 targeted mitigation order – Gov. Wolf July 15 targeted mitigation order – Sec. Levine FAQs on mask-wearing PA Department of Health’s webform to submit a complaint about a business or employer PA Department of Agriculture’s webform to submit a complaint about a restaurant or retail food facility

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The Boro*

The Boro*
Rogue Operators LLC
3308 Route 940, Suite 104 #450

Mount Pocono, PA 18344





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