• Tom Ford, Editor

Yes, State COVID Orders ARE Laws -- Last Week, State Police Issued over 450 Warnings & Citations

Polling continues to reaffirm that the vast majority of Americans, across the political spectrum, have no problem with, and most actively support, the simple, science-based expedient of universal masking to help stem the spread of the novel coronavirus in our communities. But just mention masks online, or complain about a business failing to enforce the safety orders. Mere use of the word appears to act as an irresistible challenge to the minority who see the mask as some sort of threat to their liberty, seemingly engendering the same level of fury as would a Russian nuclear sub surfacing in New York harbor, or North Korean paratroopers descending on the capitol. Encouraged by a handful of irresponsible state legislators, one of their standard arguments is the "it's not a law" line. Well, it is. Yes, they are quite correct when they say that the health and safety orders were not passed by the legislature and submitted to the governor for signature. But that isn't the only way laws are made in this state, or country for that matter. We have the state and federal constitutions, they are laws; we also have municipal ordinances; we have the opinions in court cases, which become our case law; in the United States we also follow the "common law". But, even all taken together, the acts of legislature, the constitutions, the case law, and the common law, they comprise only a fraction of our laws. Only a small percentage of our laws are created by the legislature. The vast majority are created by agencies in the form of administrative regulations. On the state level, these regulations are collected in the Pennsylvania Code. The ratio of regulations to statutes is hard to pin down. But on the federal level, statutes take up about 23,000 printed pages, while the federal code of regulations is around 200,000 pages. They are all "laws".

On March 19, 2020, Governor Tom Wolf ordered all non-life-sustaining businesses in Pennsylvania to close their physical locations. Statewide enforcement of the order began on March 23. On April 1, 2020, Governor Wolf issued a statewide Stay at Home order. Under the order, all individuals must stay home except for certain essential activities and work to provide life sustaining business and government services. On April 19, 2020, Governor Wolf and Dr. Rachel Levine signed orders directing protections for critical workers who are employed at businesses that are authorized to maintain in-person operations during the COVID-19 disaster. These orders, amended as the situation developed, form the basis for the statewide mitigation efforts. They are administrative regulations, authorized by statutes, and are, in fact, part of the law of the Commonwealth of Pennsylvania. They also incorporate all of the the various "guidance" documents issued for individual businesses and activities, which thereby become part of the law, too.

The State Police have no difficulty with understanding the issue. In a one-week period (June 8-14), they issued 441 warnings to businesses and individuals for violating the various orders imposed by the Secretary of Health and the Governor in connection with the state's COVID-19 mitigation efforts. During that same period, the latest for which statistics are available, they also issued ten citations.

"While voluntary compliance is preferred, law enforcement maintains discretion to warn or cite individuals who fail to abide by the orders, and each decision is based on the unique circumstances of an encounter," the State Police said on their website.

Governor Tom Wolf has also stressed his preference for education and voluntary compliance, as opposed to enforcement. But, the orders are enforceable through criminal penalties, under the Disease Control and Prevention Law of 1955 and the Administrative Code of 1929. While other criminal penalties in those laws may also apply, depending on the circumstances, the following are the most directly applicable provision for enforcement of the orders. These include the requirements on businesses to require employees and customers to wear masks, on individuals to wear masks in retail stores and other locations, on restrictions of public gatherings of more than 250 people, on occupancy limits, etc.

First, the Administrative Code of 1929, 71 P. S. § 1409, states that:

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 thirty days.

Thus, pursuant to 71 P.S. § 1409, any person that fails to abide by the state's health emergency orders, or any other order of the Department of Health, is subject to criminal penalties.

Furthermore, under the Disease Prevention and Control Law of 1955, 35 P.S. § 521.1, the Secretary of Health has the authority to issue orders for isolation, quarantine, and other control measures, such as the orders she has issued on universal masking and the like. See 35 P.S. § 521.5. Under that act, Section 521.20 provides that any person violating a provision of the Disease Prevention and Control Law (such as control measures under section 521.5 and the Department’s regulations at 28 Pa. Code Ch. 27, Subch. C) is guilty of a summary offense and shall be fined $25 - $300. According to subsection(b) of section 521.20, “Prosecutions may be instituted by the department, by a local board or department of health or by any person having knowledge of a violation of any provisions of this act or any regulation.” This section provides authority for local law enforcement agencies to issue citations for violation of the orders issued by the Secretary of Health and the Governor. Thus, citations for businesses in violation of the orders would reference 71 P.S. § 1409 and/or 35 P.S. § 521.20(a). Finally, for more serious violators, there are also provisions under the Crimes Code for obstructing the administration of law or government function, including 18 Pa. C.S. § 5101, that may be applicable if someone refuses to abide by the restrictions ordered by the Governor or Department of Health. So, yes, the requirement to wear a mask in most public places is a law, it is not merely a suggestion, and it can be enforced. Of course, as the governor says, the preference is that people voluntarily comply for the greater public good. Unfortunately, a minority are resisting. Fortunately, they comprise merely a minority. Tom Ford is not only Editor of The Boro*, he is also an attorney, with over 35 years of experience.

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