DA Issues Opinion on COVID-19 Citations for Non-Compliant Businesses

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The clash between some of Pennsylvania’s counties, businesses and state officials over the continuation of Gov. Tom Wolf’s stay-at-home order and business shutdown also involves law enforcement, and Northampton County’s top law enforcer weighed in on the increasingly confused, confusing and political divide Wednesday.

District Attorney Terry Houck (D) issued a news release in which he said he believes “some people are attempting to make (the situation) a political opportunity.”

“I will not be part of that,” the veteran county prosecutor who was elected district attorney in November declared.

In his news release, Houck also several times characterized Wolf’s warnings to counties that attempt to reopen ahead of the state’s timeline as “threats.”

Wolf said Monday that leaders of counties such as Lancaster, Lebanon and Schuylkill–which have all said they will move from the state’s shutdown or “red” zone to its partially open “yellow” zone whether the state approves of it or not–are behaving in a “cowardly” manner that could threaten the health of their residents.

“Gov. Wolf stated (Wednesday) that he has no plans to sue counties who defy his orders or to ask the Attorney General’s Office to step in and prosecute violations where local District Attorney’s offices refuse to do so,” Houck wrote. “However, he made several threats during his press conference to both local counties and businesses. First, he said that discretionary funding may be withheld from counties who operate ‘illegally’ during the pandemic. He also threatened that businesses who reopen early are jeopardizing their insurance, certificates of occupancy, liquor licenses and health department certificates.”

According to Houck, Wolf has also been critical of “local DAs who are instructing police not to enforce his orders” because they “are hurting everyone in Pennsylvania.”

Houck did not indicate that he has instructed police not to enforce Wolf’s orders, however several DAs in central Pennsylvania have at least intimated that they have no plans to allow businesses to be prosecuted under their watch; an approach that is causing confusion in many communities and with state police, according to this Fox43 report.

In a statement posted on Facebook Monday, central Pennsylvania District Attorney Pier Hess Graf (R-Lebanon) called Wolf’s orders “misguided and wrong” and endorsed the protection of “individual liberties” in the face of “tyranny.”

“My responsibility is to do the right things, for the right reasons,” she said. “We enforce laws passed by our legislature via the political process created by our forefathers, not by a Governor who hides behind political answers and thinly veiled threats.”

Hess Graf noted that while police have the discretion to respond to a citizen’s complaint about a business “if appropriate” and may even cite them, “my office retains the authority to withdraw and eliminate prosecution.”

“The Office of the District Attorney and the police county-wide support and will stand behind our local businesses,” she said. “Local law enforcement stands behind this community; we exist to protect and serve. Our Office and Lebanon County’s police departments are a united front. This includes the Pennsylvania State Police.”

Hess Graf’s apparent assertion that Pennsylvania State Police will follow her lead differs from a March statement by State Police Commissioner Col. Robert Evanchick, in which he essentially swore his agency’s allegiance to the governor.

“The priority of the Pennsylvania State Police is protecting lives and maintaining order in the commonwealth,” Evanchick said at the time. “Private businesses, organizations and other noncompliant entities face possible criminal penalties under the Administrative Code of 1929, 71 P.S. § 1409 and/or the Pennsylvania Disease Prevention and Control Law of 1955, 35 P.S. § 521.20(a). Both violations are summary offenses punishable by fines and even jail time. Violators may also be subject to additional administrative penalties under certain circumstances.”

In April, a Lebanon County business was in fact cited by Pennsylvania State Police for allegedly violating Wolf’s March 19 order suspending in-person operations of non-life-sustaining businesses pursuant to the PA Disease Control and Prevention Act, although it is unclear if Hess Graf has since withdrawn it.

According to a state police public information release, on April 23 Cpl. Travis Messenger of Troop L’s Jonestown barracks issued a citation to Middle Creek Roofing of 336 Stricklerstown Road, Millcreek Township, Lebanon County, after state police received “numerous anonymous complaints… regarding this business being out of compliance with COVID-19 business closure orders.”

“During the investigation it was learned that the business had been warned about compliance on April 20, 2020 by the Pennsylvania State Police and again on April 22, 2020 by the Millcreek Township Police Department,” Messenger wrote under the report. “While on scene, PSP was advised that a training meeting was currently being conducted by the business which consisted of nine individuals (seven employees, the owner and a trainer brought in from out-of-state) in close proximity to one another where no personal protective equipment (PPE) was provided or in use. It was further learned that the issue had been addressed with the owner by current employees who were concerned about their personal health after a similar training meeting occurred the previous day.”

Construction work has been permitted to resume statewide since the citation was issued, however companies are still required to follow social distancing as well as other health and safety guidelines instituted to stop the spread of the disease, such as the use of face coverings.

Middle Creek Roofing has since begun to advertise “contact-free” roofing appointments designed to help customers “avoid personal contact during the COVID-19 crisis.”

Houck referenced the Lebanon County citation in his news release Wednesday, noting that it is the only business citation state police have thus far issued as a result of the COVID-19 orders. Several hundred warnings have also been handed out.

“Given the lack of citations across the state, prosecuting businesses who reopen does not seem like a particularly pressing issue at this time,” he said. “While I believe that the guidance provided by the Governor seems to be frequently changing and not entirely clear, I am not sure that a blanket prohibition on citations is wise. I think that multiple warnings should be the first approach.”

“Further, I think our Office is within its purview if we chose not to prosecute businesses simply for reopening,” he added, noting that “while I am less concerned about businesses simply being open, I do have concerns about them not following the proper protocols, such as properly cleaning and requiring masks to be worn.”

“If a business is truly operating in a way to jeopardize public safety, law enforcement should have some authority to take action (if warnings do not remedy the problem),” Houck said.

On the other hand, he said he recognizes “the need for people to get back to work. Many people are suffering and I get it.”

Houck also highlighted the fact that–like other district attorneys–his “office can decline to prosecute citations issued by the police.”

As it currently stands, 30 south central and eastern Pennsylvania counties are to remain in the “red” zone until June 4, although a handful have said they will move to the “yellow” zone this Friday, which is when 13 southwestern counties will move to that phase.

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