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 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.