ELKHART — An effort to enlist city government in the enforcement of COVID-19 restrictions was getting a hearing Monday night at only two council meetings after the mayor of Nappanee pulled the proposed ordinance. 

Local measures were scheduled to be up for a vote during the regular meetings of the Elkhart and Nappanee city councils and a special meeting of the Goshen Common Council. On the agenda for all three cities was to be an ordinance enacted by the county to back up COVID-19 safety rules, which now carry financial penalties.

Nappanee Mayor Phil Jenkins announced Monday afternoon that he had removed his city's version of the ordinance from consideration. He said he wanted to allow more time for review and to work with Nappanee businesses.

The mayors had made their joint announcement Thursday, days after action by the Elkhart County Board of Commissioners. 

Elkhart Mayor Rod Roberson said during a news conference an hour before the Elkhart City Council met that he did not know whether the ordinance would have the support of all council members, but it was important the measure pass. Roberson said he was going through the city's legislative branch to avoid issuing an executive order, which he said some might see as an overreach by his office.

Within Elkhart city limits, the ordinance would be enforced by the city's code enforcement officers. Though the code enforcement officers can issue fines, the mayor said he wants them to avoid that action if possible.

The Elkhart County Health Department issued two public orders on Nov. 19 that re-established the mask mandate from earlier this year and laid out protocols for businesses and other entities. Those include facemask-wearing requirements with signs posted at the door, as well as limits on event sizes without first getting a safety plan approved by the health department.

An ordinance passed by the county commissioners on Nov. 30 specified fine amounts for repeat violations. A first offense only draws a warning and instruction on how to correct the issue.

Fines range from a $50 second-offense penalty for failing to post a face covering sign at every entrance to $250 for holding an event with more than 25 people without having an approved plan. Fines double on third and further offenses, and are capped at $2,500 to $5,000 a day.

The hope among city and county officials is that the financial penalties are a last resort. They say the aim of all of the enforcement measures is to educate people on the public orders and how to follow them.

"The intention is still education first," Commissioner Suzie Weirick said during Monday morning's board meeting. "The intention is not to collect fines at all. The intention is really to get people to follow the best practices."

The county's actions came at the end of a single month that saw 43 percent of all COVID-19 cases recorded in Elkhart County this year. There were 8,020 new confirmed cases in November, out of a total since March of 18,510.

Local authority

The commissioners' ordinance authorizes the health department or the emergency management director to enforce the health orders with inspections and written notices. The ordinance includes a form for inspectors to use to check for violations and another form to issue notices.

Elkhart County Sheriff Jeff Siegel said after the passage of that ordinance that his officers would not be involved in enforcing the health rules. He said that would be left up to the officials who are charged with enforcement.

Weirick said the sheriff's announcement was appropriate because the penalties are civil, not criminal.

"The sheriff should not be prosecuting anybody for this," she said. "This is a civil offense, that's why it's for businesses."

The commissioners' measure also allows cities and towns to enforce the orders locally. That's what the three cities aimed to do with their own ordinances, which would adopt the county's fine schedule and authorize the mayor to designate city personnel for enforcement.

Any fines that are collected would likely go into the general fund of the government that issued the notice, whether county or municipal, according to Craig Buche, attorney for Elkhart County. 

"My understanding would be, it would most likely go into the general fund and it would be used to address or reimburse those departments that have incurred expenses associated with COVID," he said Monday morning. "Each of the cities would be enforcing their own requirements, and that would go to their unit of government."

The mayors of Elkhart, Goshen and Nappanee announced their local measures on Thursday. They said they would ask their city councils to vote on ordinances that will support the commissioners' action and the health department's protocols.

Goshen's ordinance, for example, gives the mayor authority to designate city personnel to enforce the ordinance under Indiana law. It carries an immediate effective date.  

Jenkins said Monday that he had not yet assigned personnel to Nappanee's task force.

"We will make those decisions at a later time," he said.

In his announcement, Jenkins said he wanted to give more time for review and to work with Nappanee businesses on a plan that balances responsibility to public health with the role of government. He also called on the community to remain civil and work together on a path forward.

"We can all agree that COVID has driven a wedge between all of us. This is no time to assign blame, tear each other down or continue the division," he wrote. "We need understanding and compassion in order to work through this present healthcare crisis. That means laying aside some of our rights for the greater good of the community. That means humbly admitting that we don't have all the answers."

Elkhart Truth staff reporter Rasmus S. Jorgensen contributed. 

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