ELKHART — An ordinance to let City of Elkhart staff help with the enforcement of countywide COVID-19 restrictions was approved by the Elkhart City Council on Monday evening.
That means the city’s code enforcement officers will be able to issue warnings and civil fines to businesses and organizations that do not follow the two public health orders issued last month by Dr. Lydia Mertz, the Elkhart County health officer. Included in the orders are requirements that people wear masks when in public and that businesses and organizations create a COVID-19 response plan and take precautions to limit the spread of the coronavirus. Individuals will not be fined, but retailers who do not, for instance, make sure that people wear masks inside their store, can be fined.
Similar ordinances in Goshen and Nappanee have been delayed. If they are not adopted, Elkhart County officials will be responsible for enforcement within those cities, a spokesperson for the Elkhart County Health Department said.
Elkhart Mayor Rod Roberson introduced the ordinance last Monday, asking the council to fast-track the measure and approve it in one night rather than two. Since doing so requires unanimous approval and two of nine council members did not agree to fast-track, the council was not able to vote on its approval last week. That initially meant the measure would be delayed by two weeks, as the next council meeting would be Dec. 21. To shorten the delay, City Council President Brent Curry, D-5, called for a special meeting, which was held Monday, Dec. 14.
Roberson presented the ordinance to the council on Monday, spending some time explaining what the ordinance is not.
“This ordinance isn’t a mask mandate. This ordinance isn’t an opportunity to go out and fine our community,” Roberson said.
The cities were asked by the county to help with enforcement, Roberson said, and to do so, the city needed to pass this ordinance. Passing the ordinance only means that city staff, rather than county staff, will be enforcing the restrictions; it does not create any new restrictions. Roberson has emphasized that code enforcement officers will not be out looking for violators; they will only do an inspection if they are made aware that at business or organization may not be in compliance.
The mayor invited Elkhart General Hospital nurse Kim Henke, who is also the wife of Councilman David Henke, R-3, to speak to the council Monday and explain why, from a nurse’s perspective, passing the ordinance is necessary.
She gave an emotional testimony, sharing her own experiences as well as some from her colleagues. Some are reporting symptoms of post-traumatic stress disorder. They have to quickly clean up a hospital room where a patient died so that someone else can use it. Then, when they see people not wearing masks in public, it feels like a slap in the face, Henke said.
“I’m offering these statements as an illustration of what the nurses in our community – your community – are feeling and experiencing, and I think it sometimes is very easy to disconnect from the drama that is unfolding in our hospitals,” she said. “Don’t forget us. Because we have not forgotten you.”
Following Henke’s presentation, the city’s corporate counsel, John Espar, spoke on the legality of the ordinance, as he said some on social media had claimed it is somehow unconstitutional. Espar, who said he graduated from law school in 1987, admitted that he is not a constitutional scholar.
“But I know one. Actually, I know nine,” he said, referring to the Supreme Court. “The Supreme Court has spoken on this, essentially this very question.”
He specifically referred to the 1905 case of Jacobson v. Massachusetts, in which the Court upheld the authority of states to enforce compulsory vaccination laws.
The Supreme Court has “distinctly recognized the authority of a State to enact quarantine laws and health laws of every description,” the court determined. “According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”
The ordinance itself cites Indiana Code §36-1-3-1 and §36-8-2-1 as permitting any unit of the state, including counties and municipalities, to exercise this power. No one at the meeting challenged that.
Fines will not be as severe in Elkhart, due to an amendment by Councilwoman Mary Olson, R-at-large. No matter where in the county, a first offense will not result in a fine, and in Elkhart, neither will a second offense. Third and fourth offenses would result in fines of $100 and $250, respectively. But when the county does the enforcement, fines could add up to $2,500 for a second offense, and $5,000 for a third, depending on how many parts of the public health orders are not followed. Olson’s amendment passed in a 5-4 vote, with Kevin Bullard, R-at-large; Brian Thomas, R-2; Aaron Mishler, D-1; and Brent Curry, D-5 voting against, some arguing that fines of that size would have no effect on large companies.
Olson, outside of the amendment, encouraged the administration to use any collected fines to pay for things like billboards and newspaper ads educating the public about COVID-19.
The amended ordinance was approved in a 7-2 vote, with Bullard and Thomas voting against. They argued that the ordinance was poorly written and that many questions remained about how it would be enforced.
“This is like nine blind people trying to design a duck-billed platypus,” Thomas said.
Bullard said the city should do more to educate the community, but that it should not come at the expense of businesses. He suggested that maybe individuals, rather than businesses, should be fined, and pointed out that the city had yet to figure out how to post the ordinance publicly when some public buildings, including the libraries, are closed.
“I have a lot of reservations about the quality and how this ordinance is written,” he said.
City Council meetings are held in an in-person and virtual hybrid, with some members of the council and the public being at City Hall and others attending or watching from afar. That caused some issued during the public comment section of the meeting, as there were more than 300 comments on the Facebook live stream of the meeting, and city staff struggled to make sure that people who wanted their comments read aloud had their voices heard.
After about 30 minutes, staff believed they had read all relevant comments, but Bullard said the ordinance should be tabled because he did not think it was clear whether everyone had been heard. No other council members supported that motion, so the council voted.