Health dictators and the law

The answer came too late for a column in which I questioned where the mayor gets the legal authority to order quarantines, face masks, social distances and the like.

But the mayor’s office has now responded and I am going to share this with those of you wondering the same thing. It’s going to be dry.

The City Charter gives Mayor Jim Kenney broad powers. (Photo: WPVI)

The mayor’s office said this: 

“The Board of Health is authorized to issue regulations under the City Charter and has broad powers to protect the public health. Specifically, Section 6-205 of Code delegates the Health Commissioner to the authority to order such ‘measures as are necessary to prevent the spread of disease’ where an epidemic is moving too fast for the Board of Health to meet to promulgate appropriate regulations. Section 6-103 of the code provides for penalties for violations of the Code, Board of Health Regulation, or Health Department Orders issued thereunder.”

With me so far? Good. Now let’s look at Section 6-205. This comes under the heading of Emergency Epidemic Control:

 “(1) Where a communicable disease which constitutes a serious danger to health is spreading either in the City or in the communities surrounding the City, and threatens to reach epidemic proportions unless immediately controlled; where the danger thereof is such that the Board does not have time to list the said disease as quarantinable and issue regulations for its effective control; and where the Mayor of the City has suspended the requirements of Section 8-407 of the Charter, the Department shall have the authority to issue orders, which shall be effective until the Board may meet and promulgate regulations, listing said disease as a quarantinable disease and providing for quarantine or isolation of persons who have, or are reasonably suspected of having, or have been exposed to such disease, providing for the control of animals, the control of environmental sanitation, and for such other measures as are necessary to prevent the spread of said disease.”

That mouthful is the regulation, but the department’s powers are much greater than that. It has the power to order a person to take a test and to then order the person quarantined.

Now, 6-103, under Penalties and Cease Operation Orders.

Take a deep breath:

   “(1)   In addition to any other sanction or remedial procedure provided, any person who shall violate any provision of this Title, any Regulation adopted under it, any order of the Department issued thereunder, or any condition of any license required thereunder and any person who knowingly participates in any such violation by any other person or who has reason to know that his participation will materially contribute to any such violation by another person, shall be subject to a fine of not less than one hundred fifty (150) dollars and not more than three hundred (300) dollars.

   “(2)   Notwithstanding the preceding paragraph, The Board of Health may by regulation establish in connection with any regulation adopted under the Health Code fines of greater amounts, subject to maximums no greater than the limitations for Class III offenses set forth in subsection 1-109(3) of The Philadelphia Code.

   “(3)   In addition, any person licensed under this Title who has not paid a fine and cost imposed pursuant to this Title within ten (10) days shall have said license suspended and shall cease operation until all fines and costs are paid. Continuous violation of the same provision shall be a separate violation for each day. In order to enforce this provision, the Department of Licenses and Inspections may, without further notice, issue a Cease Operations Order setting forth the unpaid fines and/or Court costs and cause the premises to be vacated of all employees, patrons and occupants until all such charges are paid.

   “(4)   In addition to the fines set forth in § 6-505(l), any person who fails to comply with an order for his isolation issued pursuant to §§ 6-204 and 6-502 of this Title shall be subject to imprisonment for 90 days and during such term of imprisonment shall be isolated in such place, for such period and in such manner as the Department may designate.

   “(5)   When the Department finds that a public nuisance exists, as provided in § 6-402(9)(a) or § 6-1103(1), and when such nuisance is not corrected and removed by the person responsible therefor, the Department may, in addition to invoking any other sanction or remedial procedure provided: 19

      “(a)   Certify to the continuing existence of such nuisance to the Department of Licenses and Inspections which shall itself or by contract abate and remove such nuisance; charge the cost of such abatement and removal to the person responsible therefor; and with the approval of the Law Department, collect such cost by lien or otherwise as may be authorized by law.

      “(b)   Apply through the Law Department, to any Court of Common Pleas or the County Court of Philadelphia for appropriate relief at law or in equity against any person responsible for such nuisance, or against any person who knowingly participates in the creation and maintenance of such nuisance by another person.

   “(6)   Any Cease Operations Order issued by the Department of Licenses and Inspections shall be posted at every entrance to the premises in conspicuous places clearly visible to the public and shall remain posted until removed by the Department of Licenses and Inspections. The violator shall promptly notify the Department of Licenses and Inspections when payment has been made. When the Department of Licenses and Inspections is satisfied that no unpaid fines/costs remain, it shall remove every Cease Operations Order which has been posted.

   “(7)   No person shall remove, damage or deface any Cease Operations Order.

   “(8)   The Department of Licenses and Inspections shall promptly notify the Police of the issuance of every Cease Operations Order and of the removal thereof. The Police, upon the request of the Department of Licenses and Inspections, shall render assistance in the enforcement of any Cease Operations Order and shall have the right to enter any premises for such purposes.

   “(9)   Any person with knowledge of a Cease Operations Order who permits the premises to be occupied after a Cease Operations Order has been issued ordering the premises vacated, or who removes, damages or defaces any Cease Operations Order shall be subject to arrest by the Police and issued a citation and summons in such manner as provided by the Pennsylvania Rules of Criminal Procedure applicable in Philadelphia to summary offenses.

   “(10)   Repeat Offenders. Any person who fails, on more than one occasion, to comply with an order for his isolation issued pursuant to §§ 6-204 and 6-502 of this Title, shall be subject to a fine of not more than three hundred (300) dollars, or imprisonment for not more than ninety (90) days, or both. A person shall be guilty of a Repeat Violation regardless whether the second or subsequent violation occurs before or after a judicial finding of a first or previous violation. Each violation, after the first, shall constitute a separate Repeat Violation offense.”

Sorry about that, but there it is, in its full glory, the underlying legislation that permits the mayor and Health Department to take almost dictatorial actions.

Like it or not, it is legal.

17 thoughts on “Health dictators and the law”

  1. “Like it or not, it is legal.” As the contents of the city’s law (which, thank you you cited in toto) have not been appealed to a higher court, yes — it is legal. But so much of what is contained in the law smacks of an unconstitutional power grab, I am wondering why no lawyer has filed suit against it. There used to be something called the ACLU, a bunch of lawyers that defended Nazis marching in Skokie, Illinois (a very Jewish neighborhood). Is the ACLU still around? Does it not smell something bad in this city law?

          1. Nowhere does it mention the right to close business for disease, for being a nuisance, yes, not for disease!! And as far as quarantining people, yes, quarantine the people who are ill, not the healthy!!

  2. HAPPY SUNDAY !!!
    and to all of the woman out there, HAPPY MOTHERS’ DAY !!!
    Pallie,
    I’m not surprised that there are laws on the books to cover this tragedy or any other issue. I welcome the ability, for people with common sense to take charge of a situation and react as necessary. The problem goes from TRAGEDY to TRAVESTY ! People doing their job, be it governor, mayor, medical officer, also have the duty to complete that job. That is to say, relax the shut downs and quarantines as suitable.
    Tony

  3. I am with Anthony Clark on this one. I don’t care for the draconian rules and regs, but desperate times sometimes call for desperate measures. One only hopes that it doesn’t become a case of “Absolute power corrupts absolutely.”

    1. Randy,
      ( such formalities )
      The term,’socialist” is often thrown around on this subject. e.g. no rights, no food = socialism. Don’t know ’bout that. Seen it, but haven’t lived it .
      What I hope to God that I never see is “MARTIAL LAW “. Yea, people are whining and bitch’n’ and everything else. With martial law, if you don’t like the law, you usually just get shot. Seen it, but didn’t live it.
      Tony

      1. Roger the socialist aspect. Regardless what’s been interpreted out there currently (or should I say misinterpreted), you are right – it doesn’t exist in reality around these parts. But martial law is something you REALLY don’t want to see or experience, that’s for sure.

    2. The draconian rules are the cause of the desperate times , it was known 2 months ago that the virus had been hyped to an insane level and was nowhere near as dangerous as everyone had been led to believe it was so that takes the legality out of the mix for me ..when I see people dropping on the streets , I’ll comply with orders but until then there is no way I’m going to be told how to live my life ..

  4. here’s an update from Media, courtesy of FOX 29.
    The salon that was supposed to open yesterday, in Media, had a impromptu rally in defiance of the state, et al, threatening to distribute fines, hair dressers’ licenses forfeiture, occupation use license.
    Delaware County has high positive test results and deaths. More than Chester County, that has rising numbers, but less than Philly. It is well established that the senior, homes are the biggest contributors to this disease. Can Media’s shops be opened ? Don’t know. Real professionals have to analyze the facts

  5. I believe there has to be a balance between the politician’s power and the people’s constitutional rights. So in poorer neighborhoods of South Philly and Kensington I have seen on nicer days people without masks gathering in large crowds without masks (which may be a contributing factor to the proposed imbalance of numbers for COVID 19) without consequence. On the other hand, small business owners who want to open, and I say confidently, would act in a judicious manner feel the wrath of government. If that is not government power out of control I don’t know what is.

  6. Well it’s nice to see that a mayor and council who refuse to arrest anyone for destruction of property, assault and as the new commissioner stated in tv, won’t arrest someone if they break in I find it ironic, no pathetic, that they will arrest someone for trying to provide for their family, their employees and their employees families never mind their customers.
    I have one question for the almighty mayor. Do you believe you must shut down businesses until not one person in the nation has the virus. After all if one person has it it can spread again. Is that what you believe? If not what do you believe? Ia am not a doctor but I believe that there is no stopping the virus unless we have a vaccine or it has worked it’s way through our population.
    I am 62 and a type ll diabetic. I am in a riskier situation than most. I believe I will (and so will everyone else) come in touch with the virus and will get it and not know it, get it and be I’ll or get it and die.
    I am not for forcing people to leave their homes as I am not for forcing people to stay in their home. Everyone has a different risk and they, and only they should decide what risk is acceptable to them.
    Because the mayor and his predecessors have
    absolutely destroyed Philly’s economy and employment relative to other big cities this forced closedown and the complete financial devastation it will cause for the city, I for one understand that his increased taxation will only lead to people like me flee the city and either move outside the city or to leave the state entirely. Mr. Mayor what will you do? Bankruptcy? I see that not in the too distant future.

  7. Reading all of the preceding, all I can say is the natives are getting restless… which gives me hope for the nation. One day — soon, I hope — enough people will say “This is total bull ****!” and toss their masks and get back to living.

    1. Vince,
      I alluded similar sentiments a while back ref, Mother’s Day. The mask is off and I will enjoy today with my wife and son.
      Tom

      1. …and I with my sons, who have come to visit and bring their mother flowers and home-made challah bread (or is that a redundancy?).

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