City obliged to enforce Wolf rules

Health secretary says gym’s reopening ‘not the right thing to do’

The city of Altoona may not be enthusiastic about enforcing Gov. Tom Wolf’s order that nonessential businesses remain closed to mitigate spread of the coronavirus, but enforcement is a requirement, according to City Manager Ken Decker.

When someone is openly in defiance of such an order, “the phones start ringing,” residents complain “and we have an obligation to investigate,” Decker said, when asked Tuesday about the Gorilla House Gym’s recent unauthorized reopening, which was followed by two quick citations.

“Like it or not, we’re part of the commonwealth of Pennsylvania,” and until the governor changes the order, “we’re stuck,” Decker said.

If City Council would want to suspend enforcement of the governor’s order, it would need to meet in open session, deliberate about it and vote, and at this point, he doesn’t have an indication that’s something council wants, he said.

Municipalities are subdivisions of the state and their authority derives from the state, according to Decker.

They’re established by state statute and as such, exercise powers granted them by those statutes, said solicitor Dan Stants.

The governor is the state’s chief executive, Stants added — while declining to say whether it’s within the governor’s rights to impose a shutdown order or incumbent on municipalities to enforce the order.

According to “Business closure enforcement guidance” from the state police, the order is enforceable through the Administrative Code of 1929.

That code provides a fine for “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.”

The order is also enforceable through the disease Prevention and Control Law of 1955, which gives the Secretary of Health the authority to issue orders for isolation, quarantine and other control measures and provides a fine for violations, according to the state police guidance.

Those laws allow for prosecution by the DoH, local boards and local law enforcement agencies, according to the guidance.

For more serious violations, the Crimes Code provides authority for filing charges of obstruction of the administration of law, according to the guidance.

The Liquor Code comes in to play in the case of establishments that must abide by its provisions, according to the guidance.

Opening the gym was “not the right thing to do,” said Health Secretary Dr. Rachel Levine on Tuesday during her daily webcast, when asked to comment on the situation.

The Department of Community and Economic Development could become involved, Levine suggested.

“In facilities like that, when those (kinds of things) are detected, they’re reported to DCED for (its) enforcement work group, and if necessary, local authorities can be contacted,” Levine said.

Wolf has tended to insist that self-interest should be sufficient for enforcement of his mitigation orders.

It’s the virus that determines the course of the pandemic, the governor has said repeatedly.

A lawsuit filed by a group of business owners charged that Wolf lacks the authority to issue the closure order and that the order violated their rights not to be deprived of their property without due process, not to have property taken without just compensation, along with their rights to judicial review and to equal protection under the law, as guaranteed by the U.S. Constitution.

The state claimed that its Constitution and state law give the Executive Branch responsibility for handling public health emergencies, providing it with broad powers to do so, and that social distancing, including business closures, were the only available means.

The state Supreme Court found for the state, in that the Pennsylvania Constitution vests the governor with “supreme executive power” and that as the state’s chief executive officer, he has primary responsibility for protecting the public safety and welfare of the people in times of actual or imminent disaster.

During disasters, he is empowered by the state’s Emergency Code to “issue, amend and rescind executive orders, proclamations and regulations, which shall have the force and effect of law,” the court found.

Those Emergency Code powers are grounded in the state’s police power to protect the health, safety and welfare of citizens, according to the court.

The pandemic fits within the definition of disaster in the Emergency Code, according to the court, dismissing one of the petitioners’ arguments.

“Faced with protecting the health and lives of 12.8 million Pennsylvania citizens, we find that the impact of the closure of these businesses caused by the exercise of police power is not unduly oppressive,” the court stated, answering another objection.

The governor’s actions didn’t violate the separation of powers provision of the constitution, based on his possessing those powers he exercised, didn’t violate the taking without compensation provision, because that doesn’t apply in such exercises of police power, didn’t violate due process, because in the emergency there was no time and didn’t violate the equal protection clause, because the examples cited by the petitioners between types of facilities that had been closed weren’t equivalent, according to the court.

The petitioners have appealed to the U.S. Supreme Court.

Mirror Staff Writer William Kibler is at 949-7038.


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