1/8/21: ONLINE PETITION DEMANDS ELECTED DARE OFFICIALS, DCDHHS ACTIVELY ENFORCE GOVERNOR’S COVID-19 ORDERS. Plus State Tops 10,000 New Cases Again; The Beacon Considers What Municipalities, Health Depts. Legally Can Do.

Governor Cooper has repeatedly sought assistance from municipalities and local health departments in his fight to prevent the spread of COVID-19 in North Carolina.

A grass-roots petition seeking to compel elected Dare County government officials and the Dare County Dept. of Health and Human Services to do more to enforce Governor Roy Cooper’s executive orders enacted to stop the spread of COVID-19 is now circulating online through change.org. You may access it here:

http://chng.it/67xHTMBBhh

Organizers are seeking 5,000 signatures on their petition. As of this writing, 2,628 people have signed in support of the petition’s list of 12 demands, which includes the demand that the DCDHHS “police” restaurants and other businesses for masking and physical-distancing violations and “apply meaningful consequences to those that don’t or won’t comply.”

The other demands speak more generally to enactment of “reasonable, consistent, and enforceable regulations” to stop the spread of COVID-19 in Dare County and to protect public health and safety.

The DCDHHS has reported 305 new COVID-19 cases since the first of the year, including a single-day record high of 73 cases on Jan. 2, and one death, bringing the number of Dare County residents who have died of the coronavirus to six.

According to N.C. public health officials, the crush of new cases attributable to Christmas holiday gatherings has not yet been registered on local health department dashboards.

Again today, as yesterday, the N.C. Dept. of Health and Human Services reported more than 10,000 new COVID-19 cases in a 24-hour period. Today’s NCDHHS dashboard shows 10,028 new cases, as well as 3,960 hospitalizations statewide, and 7,328 deaths. The positivity rate was 13.5 percent.

The change.org petition alleges that local leaders have put economic considerations ahead of local citizens’ health, accusing them of “outright capitulation” to the tourist economy and vacationers’ dollars by “allowing COVID-19 to flourish in Dare County.” 

The “local citizenry,” the petition states, “has the right to demand better leadership by our elected representatives at the state and local levels. We have not seen evidence of that. Sadly, it seems our leaders are in hiding during an emergency.”

We do not recall hearing from Bob Woodard, Chairman of the Dare County Board of Commissioners, since June 22, 2020, when he announced a local mask mandate in a videotaped message.

Certainly, neither Mr. Woodard nor Dr. Davies has held a COVID-19 briefing and responded to media inquiries—an omission that we consider a major failing.

In contrast, Governor Cooper and Dr. Mandy Cohen, NCDHHS Secretary, held more than 110 COVID-19 briefings last year.

We publicize the petition as a matter of public information. We cannot confirm or deny the facts alleged by the organizers–such as the description of the fourth of Dare County’s six COVID-19 fatalities as a 48-year-old man who was a United Parcel Service delivery driver. We simply do not have the resources to vet this petition.

While we believe the language petition is too inflammatory, we also well understand the anger and frustration underlying it. We expressed our own passions earlier this week in response to the mob violence at the U.S. Capitol.

We agree with challenges by the petition organizers to Dare County leadership to take more action to protect the public from COVID-19 or to explain publicly why it has not.

At briefings last fall, Governor Cooper encouraged local government officials to enact civil penalties (e.g., fines) to enforce his COVID-19 orders.

On Dec. 11, 2020, the Governor wrote to local government officials requesting their assistance, attaching an advisory opinion from the N.C. Attorney General’s Office concluding that municipalities have the legal authority to adopt ordinances that would impose civil penalties for noncompliance.

See the Governor’s letter: Governors-Civil-Penalties-Letter.pdf (unc.edu)

To our knowledge, only the Town of Nags Head has considered adopting local ordinances to impose civil sanctions for violations of the Governor’s executive orders; the Board of Commissioners concluded that it did not have the legal authority to do so.

Certainly, the Town Council of Southern Shores never publicly entertained such action.

The restrictions in the Governor’s executive orders can be enforced criminally through arrest and prosecution, if local law enforcement officers choose to exercise their discretion and act.

The Dare County leadership, including the Dare Control Group, could exhort police, as a matter of policy, to enforce the orders aggressively. The District Attorney’s Office also could take a stand.  

The Beacon has learned that there is legal disagreement as to whether municipalities have the authority to enact ordinances for civil sanctions.

While the Attorney General’s Office advised the Governor that they do, the University of North Carolina School of Government reached a different conclusion:

N.C. Dept. of Justice opinion: Local-COVID-Ordinances-Advisory-Letter.pdf (unc.edu)

School Of Government: Civil Penalties for Violations of State Emergency Orders? – Coates’ Canons Coates’ Canons (unc.edu) 

LOCAL HEALTH DEPARTMENT AND HEALTH BOARD ACTIONS

Of more interest to us are the actions that the Dare County Dept. of Health and Human Services, whose board has rulemaking authority, may take.

All potential health department actions are addressed by an attorney with the UNC School of Government in a Dec. 2, 2020 blog post. See Taking Local Action to Control COVID-19: What Can a North Carolina Local Health Department Do? – Coates’ Canons Coates’ Canons (unc.edu).

According to attorney Jill Moore, who also has a Masters in public health, local health directors, such as the DCDHHS’s Dr. Davies, have the “authority to issue isolation or quarantine orders, the authority to enforce the North Carolina communicable disease laws through the use of criminal or civil remedies, and the authority to abate imminent hazards.”

Ms. Moore thoroughly discusses the use of each of these “tools.” A person who violates an isolation or quarantine order issued under the authority of N.C. General Statutes (NCGS) 130A-145, for example, may be charged with a Class 1 misdemeanor, which is punishable by up to two years in prison.

This type of order is distinct from a mere instruction from the DCDHHS that an individual self-isolate or self-quarantine. Dr. Davies has referred to this power in her COVID-19 updates, but has given no indication as to whether she invoked it.

As for Dr. Davies’s enforcement of State statutes pertaining to “communicable diseases,” Ms. Moore states that local health directors are responsible for ensuring that communicable disease control measures are “given.” This is NCGS 130A-144(e).

As a practical matter, she writes, “this may simply mean ensuring that people are informed about the control measures they are required to comply with.”

But, she continues, “If a person who has been informed violates a required control measure, the misdemeanor remedy appears to be available to enforce it.”

An “imminent hazard,” she writes, is a “situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, an immediate threat of serious adverse health effects, or a serious risk of irreparable damage to the environment if no immediate action is taken.” This is language from NCGS sec. 130A-2(3).

If Dr. Davies were to determine that such a hazard exists, she could order the “owner, lessee, operator, or other person in charge of the property” where the hazard exists to abate it. Abatement can include temporary closure of the property.

Most intriguing to us is the rulemaking authority of the DCDHHS Board, which “is comprised of members selected by the Dare County Board of Commissioners,” according to the DCDHHS website.

There are 16 members of the DCDHHS Board, including:

*Tim Shearin, Chairman (Community-at-Large)

*Kevin Phillips, Vice Chairman (Pharmacist)

*Nick Kiousis (Community-at-Large)

*Christian Lige, M.D. (Physician)

*James Woodson, DDS (Dentist)

*L’Tanya Murray (Community-at-Large)

*Daniel Jones, OD (Optometrist)

*Alexis Hodges (Nurse)

*David Ryan, PE (Engineer)

*Mark Grossman (Veterinarian)

*Ashley Jackson (Community-at-Large)

*Ervin Bateman (Board of Commissioners)

*Wally Overman (Community-at-Large)

*Janine Sewell (Community-at-Large)

*Kay White (Community-at-Large)

*Chris Roberts (Social Worker)

See Our Board | Dare County, NC (darenc.com)

A local board of health “has the authority to adopt rules that are necessary to protect and promote public health within its jurisdiction,” according to Ms. Moore, citing NCGS sec. 130A-39.

To be valid, she observes, a local board of health rule must:

*Be related to the promotion or protection of health;

*Be reasonable in light of the health risk addressed;

*Not violate any law or constitutional provision;

*Not be discriminatory, and

*Not make distinctions based upon policy concerns traditionally reserved for legislative bodies.

Further, a local health rule must be more stringent than a state regulation on the same subject matter, which we believe would be a challenge in rulemaking for COVID-19 control.

If this standard were met, however, the violator of a local board of health rule could be charged with a misdemeanor or the local health director could seek injunctive relief.

We have thrown a lot of “legalese” at you today, and we have not had the time to digest it ourselves. We conclude our legal discussion with Ms. Moore’s conclusion:

“Local boards of health are charged with protecting and promoting public health in the jurisdictions they serve. . . . This suggests that local boards of health should be engaged and active partners in monitoring COVID-19 within their communities and promoting responses that ensure the public health, regardless of whether they also exercise their rule-making authority.”

We would like to know what the DCDHHS Board of Health has done during the pandemic. We have seen no public-information releases by this body.

The change.org petition is seeking “monitoring” by the DCDHHS that goes far beyond just posting the numbers of new COVID-19 cases locally. The organizers are seeking active local enforcement, just as Governor Cooper has requested for months now.

When asked at the Wednesday COVID-19 briefing whether he might impose more stringer restrictions, the Governor said, “All options are on the table.”

Ann G. Sjoerdsma, 1/8/21

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