Shelia Selman and Aimee Ambrose, The Goshen News
GOSHEN — In a last-ditch effort to get people to comply with public health ordinances to slow the spread of the novel coronavirus, the Elkhart County Commissioners passed a public health ordinance Monday establishing incremental fine structures for repeated violations. The order will go into effect Dec. 17, following two weeks of publication.
Some local store managers seemed cautiously optimistic Tuesday about having a penalty system in place to help them enforce mask usage.
“It’s a good way to enforce it. Sadly enough, I’m pretty sure not everybody is going to be happy with it, and there’s going to be problems with any business. There’s always somebody that has an opposing opinion” said Carlos Maldonado, manager at Los Primos restaurant downtown. “I think it’s good, but at the same time, it’s something we’re going to have to slowly kind of get used to.”
Susie Neff of Goshen, meanwhile, voiced support for adding fines to compel mask compliance.
“I think everyone should wear a mask when they’re out unless it’s some medical reason that they cannot. I think that we need to be kind to each other, and think of the other person,” Neff said.
She spoke while shopping at Soapy Gnome along East Washington Street and mentioned a close friend of hers died from COVID-19 Sunday night.
“And if it wouldn’t be for the damn COVID, he’d still be here ... It’s personal to me,” Neff said. “Without some kind of fine or reckoning, whatever you want to call it, I believe that it’s kind of senseless because people will not take you seriously.”
BUILDINGS CLOSED
The commissioners also immediately closed the Elkhart County Administration Building and the Elkhart County Public Services Building to the public. Both buildings are in Goshen. Business will be conducted by appointment only. Other county building administrators will post their admittance policies, and the courts will continue with their own restrictions.
“My perception is that the most critical activity that is taking on the community that’s creating this overburden at our hospitals is the large gatherings that is going on,” Commissioner Mike Yoder said, adding that this is a last-ditch effort on the part of the commissioners and the health department to get people to comply with the health order and slow the spread of COVID-19.
Commissioner Suzanne Weirick said, “None of us came to this spot lightly. If we had thought there was any other way, we wouldn’t be considering this ordinance.”
She said people have ignored the county health orders and as a result the community has been impacted heavily by COVID.
This weekend, the county activated a refrigerated truck to help store bodies, she said. Goshen Health officials said Monday that its COVID patient count had dropped to 39, but that the positivity rate for those being tested for the virus has risen to 16.1%. The county has been placed in the “red” category by state officials, meaning there is a high incidence of the virus in the county.
Weirick said she hopes people realize that masks work, distance works and sanitation works. As for masks, she said they should be a two-ply cloth mask and not a gaiter nor a face shield. “I don’t know how to stress that enough anymore. This has been a long process; a lot of thought has gone into this.”
To clarify, the commissioners did not impose any new restrictions. What passed was a fine structure to put weight behind the restrictions currently enacted.
Elkhart County attorney Steven Olsen said this is a countywide ordinance, and local mayors have agreed to pursue them within their city limits.
The mayors have not yet commented on the issue. Goshen Mayor Jeremy Stutsman told The News Tuesday he, Elkhart Mayor Rod Roberson and Nappanee Mayor Phil Jenkins are working to release a joint statement as a news release this week, either today or Thursday.
THE FINES
The ordinance states that first violations will result in a written warning.
A second violation will lead to a fine. If it is found that violations continue, an incremental fine structure for specific violations will be used to fine the violator. The maximum cumulative fine will be $2,500.
As an example, if a business fails to post signs at entrances about masks needing to be worn, that would be a $50 fine.
For third and subsequent violations, there is a similar incremental fine structure with fines doubled and not to exceed $5,000 in total.
The fines will be in place until the ordinance is rescinded or the public health order is rescinded in full.
WORRIED ABOUT ENFORCEMENT
Having a fine structure in place doesn’t bother Ron Culp, owner of Crazyman’s Stompin’ Grounds along Elkhart Road. His concern though is whether or not health department staff will be heavy-handed in working with businesses.
“Actually, I don’t really mind the fines as long as they’re not going to be super picky about it,” Culp said.
Explaining he understood the reason for the fines, he said he and his staff work to have customers wearing masks and to impose social distancing. He admitted the bar became relaxed on mask usage after state rules allowed it to reopen. Culp said he and staff have been tightening up on the use of masks as COVID cases rise locally.
“We are doing our best, it just depends on how picky they are going to be about it. That’s what I’m worried about,” he said. “We are trying our hardest.”
Sherry Wenger, a volunteer at the Ten Thousand Villages store in Goshen, believes the ordinances need an enforcement component, but she questioned whether or not fines are the best tool.
“There should be a consequence of some kind. I’m not sure if a financial consequence is the best way to do it. But these businesses must be in compliance with state and local health department requirements,” Wenger said. “There has to be some kind of substantial consequence that is meaningful and that is effective. Because the whole point is we’re trying to keep our community safe and stay open economically.”
During Monday’s meeting, state Sen. Blake Doriot questioned the commissioners about right of entry. The health department employees have rights of entry into certain businesses, including restaurants. But, he asked, can health department employees go into Forest River and say they want to inspect the facility for violations?
Olsen said, “Under the ordinance there are a number of statutory powers that the health department or others that are doing enforcement have a right to enter buildings. It depends on the type of building, type of institution, business or entity, and then within that there are certain powers that allow those officials to come in and say they would like to perform a health and safety inspection on that facility.”
Doriot asked what if the person who wanted to inspect the facility was denied and told to come back with a warrant?
“It slams in the face of property rights,” Doriot said. “I don’t see why the health department can’t go around and knock on the door and say to the facilities’ manager, ‘These are what we’d like you to do, and are you doing them?’ I guess I just don’t agree with this walking right through somebody’s door and saying, ‘Here we are. We’re going to inspect you.’”
Weirick said she did not think anyone was assuming they would walk through a door without requesting permission to enter “like any normal day.”
“The intention of this still, Blake, is not to enforce our will upon anybody other than to the extent that the public health orders need to be reinforced, just like any other work comp type of issue, and workman’s safety type of issue,” she said. “That’s exactly where this is going. The intention of this is to help people understand first before anybody needs to push to the level of anger and warrants. We are in a dire situation. We have the ability to follow through on a lot of this stuff.”
She said the ordinance will allow businesses to work hand in hand with the health department to be stronger together.
Commissioner Frank Lucchese added that people in the local restaurant community are looking forward to this ordinance, “because they’re dealing with a lot with customers who will not put their mask on. They want to use this ordinance to maybe make us the bad guy, so they can enforce that.”
Local company officials are also looking forward to the ordinance so they can talk to their employees who are not following the rules and tell them they want to remain open, so they need to comply with the rules, Lucchese said.
“So, hopefully it’s a deterrent more than anything,” he added.
Maldonado on Tuesday noted the potential of fines for non-compliance could help managers put their foot down about mask usage in their businesses.
“It’ll be a good way for us to be able to refuse service if they don’t come in with a mask or if they don’t want to wear a mask,” Maldonado said.
Doriot asked about a public hearing on the ordinance.
Olsen explained that this is not the type of ordinance that requires a public hearing. Once adopted, the ordinance will be published for two weeks and will then go into effect Dec. 17. People can comment during those two weeks if they want, but no public hearing is required and the ordinance will go into effect.
Yoder said that the commissioners gave the public plenty of time to do what’s right, “and it’s just not happening.”
The commissioners unanimously approved the ordinance.
Concerning the closing of county offices, that resolution was also approved unanimously and went into effect immediately.