COVID-19-Clarification of Shutdown Order as it Relates to Local Governments

Enforcement of the Order Delayed Until Monday 

Due to the high volume of waiver requests, the Wolf Administration is delaying enforcement of Governor Tom Wolf’s order and the Secretary of Health’s order (the “Shutdown Orders”) that all non-life-sustaining businesses in Pennsylvania must close their physical locations to slow the spread of COVID-19. 

Per the Shutdown Orders, businesses that were non-life sustaining were ordered to close their physical locations on March 19, at 8:00 PM. This order stands, only the enforcement timing will change and become effective on Monday, March 23, at 8:00 AM. 

Local Governments may Continue Limited In-Person Operations 

The State has clarified that local governments are not required to suspend in-person operations but should curtail in-person operations to the extent practical and follow COVID-19 safety precautions. What does that mean for local governments? Our thoughts are: 

• Arrangements should be made for emergency calls to your municipality to report road problems or other problems that may need immediate assistance. 
• Public works crews should continue to perform road maintenance and repairs, especially where the repairs directly relate to road safety. 
• Sewer and water systems should continue to perform maintenance and repairs to infrastructure as needed. 
• New construction projects should be delayed, unless the project will be critical to the public health and safety. Please contact us if you have specific questions about projects or bid awards. 
• Bidding for summer road materials and projects can continue. We can advise you how to get bid packages approved and advertised. Local governments will need to keep bidding for materials so the materials are available when normal operations resume. The construction companies and material suppliers we have talked to will keep their estimators working as long as they can. 
• Municipal offices should continue to provide trash bags for tag-a-bag customers with appropriate cautions for pick-up. 
• Building permit review offices are closed for now. Your building codes official should not accept new applications for building or occupancy permits until those offices open again. 
• The Shutdown Order does not automatically extend deadlines for Right-to-Know Law requests. If you receive requests, your public records officer should send out a 5-day response letter requesting more time due to a lack of staffing to respond. 

Local Governments Should Balance Public Health and Safety with the Need for Critical Services When Enforcing the Shutdown Order 

The State has also acknowledged what we all knew – The list of life-sustaining businesses to remain open is not exhaustive. We have been advising clients to use judgment in determining what operations and businesses are critical. The State has now clarified that local governments should use judgment enforcing the Shutdown Order. Local governments are not mandated at this time to enforce the Shutdown Order, but have the right to do so at their option. You should balance the public health and safety with the continued delivery of critical infrastructure and resources. Here are a few recommendations:

• Enforcement against public gatherings should be prioritized. We recommend that police be called to first to disband any public gatherings. 
• For other work that should be shutdown but is not an immediate health and safety issue, your zoning or codes enforcement office can issue a cease and desist order. 
• We recommend progressive enforcement starting with a warning, then a cease and desist order, then a citation. 

What are the Penalties for a Violation of the Shutdown Order? 

The Shutdown Order has been issued by the Department of Health in conjunction with the Governor’s Office. Violations of orders issued by the Department of Health are subject to the enforcement penalties of 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 thirty days. 

Violators may be cited by your local police or codes enforcement officer. Citations will be prosecuted after the Shutdown Order is lifted and the magisterial district courts open back up for business. 

The Shutdown Order may also be enforced by the Pennsylvania Department of Health through the Pennsylvania Disease Protection and Control Law of 1955, 35 P.S. § 521.1-521.21. The Act provides for certain fines and penalties for violations of disease control orders. 

Please feel free to call or email Andy Miller (amiller@mpl-law.com) or Doug Myers (dmyers@mpl-law.com) if you have any questions about these matters. Our office is closed, but our email and cell phones are working!