Criminal and Licensing Sanctions Are Among the Potential Legal Challenges Of Reopening Improperly
As Pennsylvania’s regions and counties move from the mandatory stay-at-home orders or “phase red” into aggressive mitigation of “phase yellow,” businesses have raised a multitude of questions concerning the process of reopening their doors. Many of these questions have been compounded by statements made by Governor Wolf, several district attorneys, and other political leaders concerning how and when certain businesses may reopen. While the reopening process is ever-evolving, the information provided in this blog is meant to serve as a factual guide for business owners during this uncertain time. Of course, the attorneys of The Lynch Law Group are constantly monitoring these developments, and stand ready to answer any questions you may have.
On May 8, 2020, several district attorneys, including two in Southwestern Pennsylvania (Greene and Beaver Counties), made statements that they would exercise their discretion and not prosecute business owners who opened or operated outside of the Governor’s red and yellow phase mandates, so long as CDC standards such as mask-wearing and social distancing were followed. Naturally, this led many businesses to inquire as to whether they could disregard the restrictions of red phase and yellow phase. On May 11, 2020, Governor Wolf made several statements that businesses could still be prosecuted for defying his administration’s orders, be subject to suspension or revocation of licenses, and lose certain liability insurance benefits.
Violating an Executive Order of the Governor or Order of the Secretary of Health
Violating an order of the Governor or the Secretary of Health during the COVID-19 pandemic can lead to criminal liability. Section 1409 of the Administrative Code, 71 P.S. § 1409, states that anyone who violates, resists, or interferes with an order of the Secretary of Health commits a summary offense, and can be ordered to pay a fine of up to $50. A more serious summary offense exists for any individual or business that disobeys an order for disease control measures, which the Commonwealth has stated include all COVID-19 orders of the Governor and Secretary of Health. These summary offenses carry fines of up to $300.
In business closure guidance provided to law enforcement, the Pennsylvania State Police also indicated that, “for more serious violators, there are also provisions under the Crimes Code for obstructing the administration of law or government function, including 18 Pa.C.S. § 5101, that may be applicable if someone refuses to abide by the restrictions ordered by the Governor or Department of Health.” A violation of Section 5101 for obstruction of justice is a second-degree misdemeanor.
What if my district attorney said I won’t be prosecuted?
If your business is in a county where a district attorney said businesses that open in defiance of the Governor’s and Secretary’s orders will not be prosecuted, you and your business still face risk for not obeying the relevant COVID-19 orders. First, while local law enforcement may not be actively enforcing the Governor’s and Secretary’s orders, both the Pennsylvania State Police and enforcement agents from other state agencies have concurrent power to enforce. Further, even though district attorneys have broad discretion in prosecution of offenses and crimes, see In re Private Crim. Complaint of Wilson, 879 A.2d 199 (Pa. Super. 2005), this discretion is not unlimited.
The Pennsylvania Attorney General “may petition the court having jurisdiction over any criminal proceeding to permit the Attorney General to supersede the district attorney in order to prosecute a criminal action or to institute criminal proceedings.” 71 P.S. § 732-205(a)(4). Courts may grant that petition and order the Attorney General to prosecute a matter if the district attorney’s refusal to prosecute “constitutes [an] abuse of discretion.” Id. Moreover, the Attorney General may initiate proceedings in county courts for “criminal charges investigated by and referred to him by a Commonwealth agency arising out of enforcement provisions of the statute charging the agency with a duty to enforce its provision.” 71 P.S. § 732-205(a)(6). Agencies that have such criminal enforcement powers include the Department of Health and the Liquor Control Board.
Can my business be forced to close?
In a word – yes, especially if your business requires a license from the Pennsylvania Bureau of Professional and Occupational Affairs or another licensing board to operate. This Bureau, part of the Pennsylvania Department of State, organizes many of the licensing boards and commissions in Pennsylvania, such as those for accountants, barbers, automobile dealers, cosmetologists, and real estate agents and brokers. The Bureau maintains an extensive schedule of civil penalties, including both monetary fines and formal actions such as revocation or suspension of licenses, related to any number of violations of statutes and codes of conduct for a particular profession. See generally Title 49, Chapter 43b of the Pennsylvania Administrative Code.
However, the statutes and regulations governing specific industries and professions also provide for formal disciplinary action for violation of state laws and rules. For example, the owner of a salon who holds a license from the Board of Cosmetology has “the primary responsibility” of ensuring that the salon is operated in compliance “with all laws of the Commonwealth,” and the failure to adhere to that standard will subject the license holder to formal disciplinary action. 49 Pa. Code § 7.64. The board governing licensed massage therapists can revoke, suspend, or limit a license of a therapist for engaging in unprofessional conduct, failing to conform with acceptable and prevailing practice, or engaging in misconduct in practicing massage therapy. 63 P.S. § 627.9. Automobile dealers face both licensing and criminal sanctions from the Board of Vehicle Manufacturers, Dealers, and Salespersons for unauthorized operations. 63 P.S. § 818.302(a)(3) & (5). Finally, any business the operates with a liquor license faces steep fines and penalties, including suspension or revocation of a liquor license, for violating any statute, regulation, or order of the Commonwealth. 47 P.S. § 4-494.
In these challenging times, our clients and fellow business owners face difficult decisions on what is best for their businesses and families. As the COVID-19 pandemic continues through 2020, the attorneys of The Lynch Law Group are here to answer any of your questions and guide you through the legal and regulatory processes surrounding your business.
Read Part 2 on this topic: Businesses Violating COVID-19 Orders May Face Criminal and Licensing Sanctions: Part 2