Violations of the Governor’s Order to Close Physical Locations of All Non-Life Sustaining Businesses – Updated Enforcement Guidance
Beginning on March 19, 2020 through May 8, 2020, Governor Wolf in combination with the Department of Health has issued numerous orders taking broad and far-reaching actions regarding operations of, among other things, “non-life sustaining” business.
The Governor’s original and subsequent orders provided for local officials to enforce the orders, to the fullest extent of the law. Recognizing the extraordinary powers granted upon the Governor during a disaster emergency and the separate powers given to the Secretary of the Department of Health to employ measures necessary for the prevention and suppression of disease, we issued appropriate guidance to local law enforcement regarding the mechanism by which the Governor’s Non-Essential Business Order could be enforced.
Based upon the original orders that were issued by the Governor and Secretary of the Department of Health, we provided law enforcement a directive to request “voluntary compliance” with these orders. Law enforcement was also given the authority to issue citations as set forth below:
“Law enforcement agencies are empowered to enforce these Orders by issuing a
non-traffic summary citation for non-compliance in violation of the Pennsylvania
Disease Control and Prevention Act of 1955, 35 Pa. Stat. § 521.20(a), and the
Pennsylvania Administrative Code of 1929, 71 Pa. Stat. § 1409. These summary
offenses provide for a penalty of a fine ranging from $25.00 to $300.00 under the
Disease Control and Prevention Act, and a fine ranging from $10.00 to $50.00
under the Administrative Code, with up to 30 days imprisonment for willful non-
payment of the fine and court costs under both Acts.”
To date, I am not aware of any citation being issued to a Berks County business.
We also requested that citing businesses for non-compliance should not be a matter of first resort. Instead, we strongly advised that engagement and education, not citation, was the recommended course of action.
Since we first issued this directive, ongoing changes rapidly occurred within a short timeframe regarding key elements of the above-referenced orders. These include: (1) definitions of “life sustaining” versus “non-life sustaining” businesses; (2) the basis for granting exemptions for businesses to remain in operation; and (3) the geographic locations within the Commonwealth wherein businesses face varying degrees of on-going restrictions. Most recently, the Governor and Secretary of the Department of Health issues orders on May 7, 2020, which extended their prior orders to June 4, 2020. Additionally, on May 8, 2020 amendments were announced regarding which counties could ease regulations on businesses versus other counties that would not receive the same considerations. Further, it is clear additional business classification and operational changes will occur on an ongoing and frequent basis.
The original March 19, 2020, and subsequent amended orders and regulations are penal in nature to the extent that they allow criminal citations and penalties. In order to properly enforce them, citizens must clearly be aware of the differentiation between criminal and non-criminal conduct. The language of such penal regulations can neither be vague not overbroad.
Additionally, citizens cannot be subjected at risk of criminal penalty to restrictions whose terms continually change. Rapid changes in the definition of what constitutes criminal conduct renders the application of criminal law as arbitrary and impossible to follow or defend against.
In analyzing the ever-changing scope and application of these orders, we find that their enforcement as criminal penalties is not possible on the consistent basis required of prosecutors and law enforcement. Accordingly, this office will not prosecute any criminal citations for alleged violations of the above-referenced orders and regulations, as amended, issued by the Governor and Secretary of the Department of Health concerning the operation of non-life sustaining businesses. Additionally, we are hereby directing law enforcement to not issue any such citations.
We expressly note that our directive to law enforcement solely applies to the penal application of these orders and regulations. We are expressly remaining silent on any issues concerning potential civil or administrative penalties that may be imposed. Civil or administrative matters are beyond the scope and standing of this office and it would be inappropriate for us to offer any legal opinions or guidance on that topic. Law enforcement and the District Attorney’s Office has no jurisdiction in matters of State Licensing and Civil or Administrative penalties.
Concerning any potential calls to law enforcement regarding perceived violations of the above-referenced order and regulations, this office stands by its recommendations to law enforcement concerning engagement and education with potential non-compliant individuals on the needs to ensure public safety. Law enforcement may file charges for other applicable criminal violations surrounding these callouts, such as those found in the Crime Code, Vehicle Code or drug laws. We recommend that law enforcement continue to educate businesses that the wearing of masks and social distancing are imperative to “stop the spread.”
Lastly, we thank our partners in law enforcement for your dedicated support of our community in this time of crisis. Now, more than ever, our community needs us to ensure that our citizens are governed by the fair and just enforcement of the rule of law. We look forward to our continued partnership in carrying out this vital duty.
John T. Adams