GOSHEN — County officials have set penalties for COVID-19 safety violations in what they call a last-ditch attempt to make people take the health threat seriously.
The Elkhart County Board of Commissioners on Monday approved an ordinance that spells out the fines that will be assessed for failure to comply with COVID-19 mitigation directives. After it goes into effect on Dec. 10, repeat violations of requirements set out in recent public health orders from the Elkhart County Health Department, like wearing a mask, could net a business fines of up to $5,000 per day.
Two orders went into effect on Nov. 19, one regarding mask use specifically and one setting out rules for restaurants, retail stores, factories and other businesses and entities. Those rules include, for every business, implementing a COVID-19 response plan; for restaurants, having barriers or 6 feet of separation between tables; and for gatherings or events where more than 25 people will attend, submitting a safety plan for health department approval beforehand.
Both orders can be viewed at health.elkhartcounty.com.
Monday’s ordinance applies to all businesses and entities inside Elkhart County, including those in towns and cities as well as in unincorporated areas, according to county attorney Steve Olsen. The ordinance gives enforcement authorization to county officials and to municipalities.
Elkhart County Health Officer Dr. Lydia Mertz said the site visits will be carried out by food inspectors, who already do similar work looking for health violations at restaurants, possibly along with help from others. She said the health department will use the next two weeks to identify who will be involved and to train them.
She hopes to see inspections carried out unannounced as well as in follow-up to complaints. The health department has received complaints since March about businesses not enforcing COVID-19 rules, and included a new form to gather concerns as part of the recent health orders.
“We see about equal amounts of complaints about customers and employees,” Mertz said. “Our main goal is not the fines, although they are there for repeat offenders. Our goal is education, helping businesses work through any problems that may be preventing them from being in compliance, and reinforcing just how serious this infection is in Elkhart County.”
A first offense will result in a warning rather than a fine, Olsen said while introducing the measure. He explained that an enforcement official would carry out an inspection, identify any violation and establish what actions need to be taken to correct it.
“First and foremost, the purpose of this ordinance, just like the public health orders, is to educate the public and ensure compliance, not to create civil fines,” he said. “So the first violation is a written warning.”
Anything that hasn’t been corrected on a second inspection will draw a citation. Individual fines include $50 for failing to post a face covering sign at every entrance, $100 for not creating a COVID-19 response plan and $250 for other violations, including holding an improper gathering or meeting.
Individual fines could add up to a penalty of up to $2,500 for a second offense. They would be doubled for third and later offenses, up to a maximum of $5,000.
“This ordinance establishes objective fine structures in order to remove the subjectivity that could otherwise exist in enforcement,” Olsen said. “We have (third and subsequent violations) in here just because we understand the importance of it, although we are very optimistic that no one in Elkhart County would ever have a third or subsequent violation.”
‘It’s beyond COVID’
The commissioners also approved on Monday a resolution to limit public access to county government buildings. The Administration Building on 2nd Street in Goshen and the Public Services Building on Elkhart Road are open to the public by appointment only, starting Tuesday.
Restrictions should be posted on department websites and on the doors of the buildings, Olsen said. Phone numbers will be posted so people who arrive can try to make an appointment on the spot, and the board may consider having an intercom system installed at entrances for people who don’t have cellphones.
Both measures cite alarming numbers of infections and deaths due to COVID-19 locally. That includes an infection rate of 20 percent or more and deaths that reached an average of four a day by late November, according to Olsen.
“In the first 28 days of November, we had 81 people in Elkhart County die of COVID-19,” he said. “The hospitals in Elkhart County have continuously exceeded their traditional capacities, have been deferring new patients to facilities elsewhere and have been unable to address many other traditional medical conditions for a hospital, that are important to all within Elkhart County, as a direct result of the high numbers.”
Before making a motion to approve the penalty ordinance, Commissioner Suzie Weirick remarked on what she called the dire situation that caused the board to consider enforcement measures.
Existing health orders were being ignored, she said, causing a ripple effect beyond just infection numbers. People are having trouble accessing regular health care services as a result of hospitalizations, and the county recently had to activate a refrigerated semi truck for corpse storage as a result of deaths, according to Weirick.
“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. “It is beyond COVID. It’s the ripple effect into the community that has put us into this position. We really just hope ... that people understand masks work, distance works and sanitization works when all used together.”
One more chance
The ordinance is the result of weeks of effort and discussion, according to Commissioner Mike Yoder. He and Olsen said the fine structure doesn’t represent new rules but spell out in more detail the penalties that are included in the two public health orders.
“We worked closely with the health department, with mayors, school superintendents are involved in some degree in the discussion leading up to this point,” Yoder said. “As I understand, we are not imposing any additional rules with this, we are actually layering this on top of public health orders to add an additional enforcement layer.”
Commissioner Frank Lucchese, whose family was in the restaurant business for years, said he’s heard from businesses that would be grateful to have something they can point to that backs up the rules. He hopes it’s effective as a deterrent.
“In the circle of the restaurant community, they are actually looking forward to us to have this because they’re dealing a lot with customers that will not put their mask on, so they want to use this ordinance to maybe make us the bad guy so they can enforce that,” he said. “And also some of the larger companies that I’ve talked to recently are looking forward to this so they can talk to their employees who aren’t really following the rules – ‘Hey we want to want to keep open, so we need to follow these rules.’”
Mertz also said after the meeting that she believes the majority of businesses in the county support the move.
“They are interested in doing what they can to have healthy customers and a healthy workforce – they need both to succeed,” she said.
But state Sen. Blake Doriot spoke up Monday morning to question the authority that the ordinance gives inspectors to go onto private property.
“It just slams in the face of property rights. 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 would like you to do, and are you doing them?’” he said. “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 told him the public health orders need to be reinforced like any other worker safety issue. She stressed that the aim is to make people understand the rules before it reaches the point of getting angry and asking for a warrant.
Olsen said the legal authority of the health department to enter a building depends on what type of business it is. It also has some authority under the licenses it issues.
Yoder later said there was once the hope that the public would behave responsibly if they were given the facts, and enforcement like this wouldn’t need to be taken. He believes one of the biggest activities driving up the numbers in the community are large gatherings that continue to take place.
“So, a last-ditch effort on the part of the commissioners and the health board to say this is serious, and so we’re imposing the fine structure. You still get a chance. You’re going to get a chance to do what’s right before the fines are imposed,” he said. “I don’t know how much more fair we can be about this. We’ve given the community plenty of time to act responsibly and that’s not happened.”