Victoria Waters, of Goshen, walks out of the Goshen Post Office Tuesday afternoon in Goshen. Staff photo by
Joseph Weiser
GOSHEN — In a special meeting Monday evening, Goshen City Council members narrowly passed a new ordinance authorizing the city to enforce COVID-19 mitigation protocols recently issued by the Elkhart County Health Department and Elkhart County Board of Commissioners.
The ordinance, which was passed in a vote of 4-3 in favor following more than two hours of discussion, followed a Dec. 4 press release issued by the mayors of Goshen, Elkhart and Nappanee indicating their intentions to bring such an ordinance to their councils Monday with the goal of supporting the countywide effort to combat COVID-19.
But of the three cities, Goshen’s would be the only ordinance approved on Monday.
The Elkhart City Council moved its version of the ordinance from first to second reading Monday, with further consideration of the ordinance and public discussion to be held Dec. 21, while a version set to be voted on by the Nappanee City Council Monday was pulled at the last minute to allow more time for discussion.
“I want everyone to know that I do not take this request tonight lightly,” Goshen Mayor Jeremy Stutsman said in introducing the city’s ordinance Monday. “Officials in Elkhart County have been pleading with those in our communities to work with us to slow the spread of COVID-19 for nearly nine months. Now I stand in front of you asking for help to reduce this spread, to protect our most vulnerable in our population, to further protect our front-line workers, and to help ensure our economy is not shut down again by higher government officials.”
The ordinance, which recognizes and supports the Elkhart County Health Department’s adoption of Public Health Orders 05-2020 and 06-2020, as well as the Elkhart County Board of Commissioners’ adoption of Restated County Ordinance 2020-38, authorizes Stutsman to designate an enforcement team to help implement the terms of the county’s ordinance within Goshen’s boundaries, as county officials have indicated that they do not have the manpower to send county workers into the cities to enforce the new directives.
THE ORDINANCE
The county’s ordinance, passed by the board of commissioners Tuesday, outlines a countywide incremental fine structure for businesses found to be violating orders, including a requirement for face mask usage, issued by the Elkhart County Health Department earlier this year.
“This ordinance deals with businesses, not individuals. This deals with public events, not family get-togethers,” Stutsman said of the ordinance’s scope. “If we as a community stand together, as our county commissioners, mayors, health officials and school officials have, then we can get ahead of the spread of COVID-19, and show others what it means to be a community. Standing together would eliminate the need for this ordinance, and the county’s ordinance.”
Set to take effect Dec. 17, the ordinance calls for first-time violators to work with health department staff on complying with the rules. But a second violation could lead to fines of up to $2,500. Three or more violations could result in fines of up to $5,000.
“We will not be using the police department for this enforcement,” Stutsman added of the ordinance. “We’re looking at some of our inspectors who have naturally slowing schedules, some due to COVID-19, but also some due to just the time of the year.”
Though the new county ordinance, and subsequently the new city ordinance, add teeth to the county’s health orders, Stutsman explained that the intent behind the city’s ordinance is to better educate violators on slowing the spread of the coronavirus, and not to generate revenue for the city’s coffers.
“At this time, state statute says violating a governor’s order is a Class B misdemeanor. I will not use that option. I will not have our police department charge someone with a criminal offense over these violations, which is why we are creating this ordinance. We can lessen the penalty to a civil fine,” Stutsman said of his intentions with the ordinance. “We will work with businesses and use this as an education tool, and not a revenue generator. We will give businesses a reasonable amount of time to correct violations before we take action. It is my hope that the city of Goshen does not write one fine.”
However, should fines ultimately be issued by the city, Stutsman said his intention would be to direct those fines to the city’s Emergency Management Fund, which is designed specifically to assist city residents during emergency events.
“I was going to propose to the council that we put the money that does come in from this to our Emergency Management Fund, which is the same fund that we utilized to help pay utility bills earlier this year,” Stutsman said. “And it’s the fund we utilized during the flood (of February 2018) to help people out, too. So, that fund goes directly back into our community.”
APPEAL TO THE COMMUNITY
As part of Monday’s meeting, Stutsman invited a number of community leaders the city has been working with closely over the past nine months for informational and educational purposes related to COVID-19 to speak to the need for such an ordinance.
Of those invited to speak, Dr. Daniel Nafziger, an infectious disease specialist and chief medical officer for Goshen Hospital, was perhaps the most poignant, issuing an emotion-filled appeal to the community for support in helping to slow the spread of the virus.
“Today at the hospital I believe we had four patients die in our intensive care unit, and perhaps there will be a fifth before the evening is over. And I do not know, in the last 20 years, of that type of thing happening. It is too much,” Nafziger said, his voice cracking with emotion. “I’m not here to lobby for or against a specific set of rules, but we are just beginning to see the effects of the Thanksgiving
holiday in terms of its impact on our colleagues, and I expect things are going to get considerably worse. This is a time to act, and to slow the spread of this virus in our community.”
Melanie Sizemore, public information officer for the Elkhart County Health Department, was quick to agree.
“We know masks work, and we know that it helps slow the spread of the virus. So, we find it vitally important that people wear them. And now that we are seeing significant community spread, what we know is that contact tracing is not working as efficiently as it once did. There are so many people testing positive that the state can’t keep up,” Sizemore said of the situation. “At one point, we had 1,000 cases (in the county). We have five people to do this job. ... We are absolutely overwhelmed. We need everybody to wear a mask. And in order to help that happen, enforcement of businesses is what we felt was the right way to go. We know the masks work. That’s really what it comes down to.”
Also invited to share their thoughts on the ordinance Monday were Goshen Fire Chief Dan Sink, Nick Kieffer of the Goshen Chamber of Commerce, Superintendent Steven Hope of Goshen Community Schools and Suzie Weirick of the Elkhart County Board of Commissioners.
COMMUNITY RESPONSE
Of the 19 members of the public who chose to speak during Monday’s meeting, which was held virtually utilizing the video conferencing platform Zoom due to COVID-19 restrictions, 14 spoke in favor of the ordinance, while two voiced opposition. The remaining three speakers posed questions related to the ordinance, but did not specifically speak either for or against the ordinance.
Among those to speak in opposition to the ordinance was Jason Mills, a small business owner from Bristol, who said he felt the ordinance is an attack on local businesses.
“This is fear-driven. This is an appeal to emotion,” Mills said of the ordinance. “I have had COVID. I have comorbidities. I have an autoimmune disease. My wife, with several comorbidities, has had COVID. Our three infant, premature-born triplets have had COVID. My two daughters have had COVID. We are all fine. ... This is an attack on businesses in so much that it attacks individuals to pressure them. ... I don’t want to go to a place where individuals are encouraged to report those businesses who say, ‘I don’t care if you have a mask, come on in, you’ll be fine.’” Also speaking in opposition to the ordinance was Chris May, owner of Embassy Coffee Co. in Goshen.
“There are many businesses that are not on board, that are very frustrated, that don’t come forward and talk because cancel culture attacks you, which happened to me,” May said, referencing the backlash his business suffered after he led an anti-mask rally at the Elkhart County Courthouse in August. “I’m OK with being in compliance with masks. I’m not OK with fines. This is an overreach of government. This isn’t right, especially when businesses are leaning on this time, when they’ve been through so much already, the most prosperous time of the year for them to thrive again.”
Among those to speak in favor of the ordinance was Myron Bontrager, owner of The Electric Brew in downtown Goshen.
“I do not feel that this is an attack on my business. Restrictions do not hinder my business, the pandemic does,” Bontrager said. “I am not fear-driven. I am science-driven. ... I strongly support this. I am not afraid of fines. We have tried very hard to run our business in a way that is safe for people because we respect our staff, we respect our customers, and we respect our community. And if we can save one or two people, then that’s well worth it.”
Jenny Frech, owner of The Soapy Gnome in downtown Goshen, offered a similar sentiment in voicing her support for the ordinance.
“Since COVID-19, we’ve had really, really strict policies for not just hand sanitizer, but washing your hands, you must wear a mask — face shields don’t count for us — and we are policing people within our store with keeping their mask over their nose the whole time,” Frech said. “Our business has actually been up, and I suspect a huge reason for that is because we insist on a safe shopping experience for our customers and for my team members. We have signs posted. We state our expectations as people come in the door. We still do get some people who whine about washing their hands, or walk out when we ask them to put on a mask, and I think it would be really helpful if all of the businesses were on the same page, and we had the same language to talk about things.”
Jesse Sensenig, owner of the Goshen Brewing Co. in Goshen, agreed.
“I feel like you have a sound mind throughout this, and I’m in support of the ordinance,” Sensenig said. “We have been following all these guidelines, and we want to. We feel like it’s good for the community, and just wanted to express that we are for the ordinance, and not concerned, really, about fines. It hasn’t been that much of a burden on us, I guess, because of our mindset of where we stand. So, thank you, we and just wanted to let you know that we are in support of it.”
COUNCIL THOUGHTS
At the close of the public comment portion of Monday’s meeting, Stutsman reiterated his desire for the ordinance to be a tool for education first and foremost, rather than a method for bringing in additional revenue for the city.
“Somebody did mention that fines are tough during these times on businesses, and I agree. My standpoint is not that we want to fine businesses. We want to work to educate,” Stutsman said. “As a business owner myself, and my wife is a business owner, I would think that my stance then and now would be, I would rather receive a small fine or a warning than take the potential of having our economy shut down again. It seems to me that that’s much better.
“With this ordinance, we are following suit with county, state, and if you go to the CDC, federal guidelines. So, we are bringing all levels of government together to have the same voice, which I think is very valuable,” he added.
For her part, council member Julia King said that in the end, she felt that approval of the ordinance was in the best interest of the city as a whole, even if there are some who inevitably do not agree with that sentiment.
“I believe that all those of us casting votes, and the people who came here tonight to educate us, are really doing the best we can under challenging circumstances, doing what we think is right for Goshen,” King said. “And I hope, even if you’re not happy with the outcome of this, that you can recognize that we do this, and we respect all the people who have communicated with us however they feel about this, and we’re using our best judgment.”
Brett Weddell, president of the council and a downtown business owner, offered a similar sentiment.
“I got a text message from a local lawyer a couple of weeks ago, and his comment to me was, ‘Mask mandates don’t shut down businesses, lockdowns do.’ And I think for me, again, this is a point where we don’t want to get to a lockdown. My business in downtown Goshen was shut for seven weeks early on, when this all happened, and I don’t want to get to that point again,” Weddell said. “We really need to, again, hold up our health care system and our community. We shouldn’t be afraid. We should respond to the COVID virus rationally, protect the vulnerable, treat the people who get infected compassionately, and work toward a vaccine.”
Weddell also pointed out that the county has already passed its ordinance, and has the authority to enforce it in Goshen, even if county officials have said they do not intend to do so using county employees.
“What we’re asked to do tonight is to allow the administration to appoint designated individuals to be the local investigators, so that we have a local connection. We always talk about home rule. I’d rather have someone that works for the city, that we have control over, going to our local businesses and discussing with them, and talking through it,” Weddell said. “So, let’s remind everyone here that this ordinance is already passed in the county. The fines are already there. The county employees can come in and enforce it in Goshen. But I for one would rather have city employees doing the enforcement.”
In the end, a majority of the council’s members agreed, and the ordinance was approved in a vote of 4-3 in favor on both first and second readings.
Voting for passage of the ordinance were council members Weddell, R-At Large; King, D-At Large; Megan Eichorn, D-District 4; and Gilberto Pérez Jr., D-District 5. Voting against the ordinance were council members Jim McKee, R-District 1; Doug Nisley, R-District 2; and Matt Schrock, R-District 3.
MOVING FORWARD
Given that the county’s ordinance is not set to go into effect until Dec. 17, Stutsman noted that he will be working with his enforcement team, county health officials, the city’s legal department, the Goshen Chamber of Commerce and local business owners to develop a solid plan for moving forward once the ordinance goes live.
“We’ll be using all the resources we have to make sure people are informed,” Stutsman said. “And because we realize that we may come into a business that hasn’t even heard about this, we’re going to work with them. We’re not here to fine them. We’re just here to make sure that everybody knows what they need to be doing, and that they’re doing the best they can to get that done. So, whether or not a business has heard about this, we’re going to work with them to figure out how to get this moving forward.”
Once implemented, Stutsman noted that the fines outlined in the ordinance will remain in place until the ordinance is either rescinded by the council, or the county’s public health order is rescinded in full.
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