Local Jurisdictions Adopt Civil Penalties for COVID-19 Health Order Violations
By Gianna Geil
August 14, 2020
On August 6, 2020 the Sonoma County Board of Supervisors unanimously approved an urgency ordinance creating new civil penalties for violations of Public Health Orders in an effort to curb the continuing spread of COVID-19. Additionally, the Board approved a new County hotline allowing the public to report infractions of public health ordinances. The ordinance is effective for all of Sonoma County, including unincorporated areas. This post will provide a summary and explanation of the urgency ordinance as well as a comparison to similar ordinances in other jurisdictions.
Purpose of the Ordinance
Fifteen findings are listed to support the necessity of the ordinance. These include previous findings on the severity of the COVID-19 pandemic made by the World Heath Organization and the Centers for Disease Control and Prevention, as well as previous actions taken by the State of California and County Health Officials to curb the spread of the virus. Additionally, the ordinance notes that Sonoma County remains on the State’s “County Monitoring List” and is out of compliance with various indicators set by the California Department of Public Health, including high case rates and high numbers of hospitalizations. Because transmission of COVID-19 continues, the Board found that additional enforcement mechanisms were necessary to incentivize compliance with public health orders.
New Civil Penalties
Any violations, both commercial and non-commercial, under the ordinance are subject to the immediate imposition of civil penalties. Non-commercial (personal) violations are subject to a penalty of $100 per violation. To incentivize businesses to comply with public health orders, commercial penalties are quite steep so they cannot be dismissed as part of “the cost of doing business.” For commercial violations, a civil penalty of $1,000 will be imposed for the first violation, $5,000 for the second violation, and $10,000 for each additional violation.
These penalties can be imposed by an enforcing officer, hearing officer, or the court. However, broad discretion is given to enforcing officers and they may choose to issue a warning before imposing a penalty. If violations continue after a penalty is imposed, enforcing officers may refer the violator to law enforcement for criminal enforcement.
Additionally, the ordinance gives the Office of the County Counsel and each city or town attorneys’ office authorization to file civil actions to enjoin violations and recover all associated costs, attorney’s fees, and fines or penalties.
Types of Activities Constituting Violations
Non-commercial Violations
Personal violations include not wearing a facial covering in spaces outside the home where six feet of distance between members of other households cannot be maintained; hosting gatherings of more than 12 people who aren’t in the same household; and not self-isolating after testing positive for COVID-19.
Commercial Violations
Businesses are required to comply with all local and state orders, including the local health order of June 18, 2020. Appendix A of that Health Order outlines the following requirements (which we have summarized) that all businesses currently operating in Sonoma County must follow, if applicable to them:
- Signage. Businesses must post the following signage: a copy of the business’s Social Distancing Protocol at each public entrance; reminders throughout the facility reminding customers to maintain social distance; and signage at all public entrances informing personnel and the public about basic health guidelines such as maintaining distance, wearing face coverings, and not entering the facility if displaying COVID-19 symptoms.
- Personnel Training. Businesses must train personnel on COVID-19 safety guidelines including guidelines released by the CDC and any mitigation plans and protocols the business may have. Educated employees and management must carry out the COVID-19 mitigation plans and protocols, and the business must provide a copy of the Social Distancing Protocol to each employee.
- Individual Control Measures. Businesses must implement individual control measures and screenings including temperature checks for each employee at the beginning of a shift and requiring all persons wear face coverings at all times. Employees displaying COVID-19 symptoms should be instructed not to come to work, and any personnel who can work from home are encouraged to do so.
- Handwashing and Sanitizing. Businesses must ncourage frequent handwashing and provide hand sanitizer and/or soap and water to personnel and the public. Handwashing facilities must be stocked and operational.
- Cleaning and Disinfecting. Businesses need to clean and disinfect high-contact surfaces and common areas, provide disinfecting wipes to customers and personnel near shopping carts or baskets, and should also adjust store hours to provide enough time to properly clean the premises.
- Social Distancing. Businesses must ensure that measures to maintain social distancing are in place such as six-foot markings in customer line areas, installing barriers between staff and customers, limiting the number of customers allowed on the premises at once, and staggering employee shifts and breaks to avoid people congregating in groups. Remote purchasing, delivery, and curbside pickup options should be utilized if possible. In-person meetings should be minimized.
The County’s face covering requirements are located in Appendix B of the June 18th order. All businesses in Sonoma County are also required to follow industry specific state guidance, which can be found in Appendix C of the June 18th order.
Businesses and customers are encouraged to utilize the new County hotline and call (833) 723-3707 if they encounter customers or proprietors who are not complying with health orders. The public can also email complaints to safe707@sonoma-county.org.
What Enforcement Looks Like
Enforcement of the ordinance is at the discretion of the enforcing officer for the county, city, or town in which the violation occurs. The ordinance defines an enforcing officer as an “officer, employee, or agent of the County, or a city or town within County, authorized by law or designated by County Administrator or city or town manager to enforce violations.” This includes law enforcement officers or investigators, code enforcement officers, and government employees such as park rangers. As previously mentioned, enforcing officers have the discretion to first issue a warning to any violator prior to imposing a civil penalty.
Comparison with Other Jurisdictions
Other counties and cities in the area have issued similar health ordinances in recent weeks. We will take a quick look at three others: Marin County, Napa County, and the City of Santa Rosa. Be sure to check your local jurisdiction for any applicable ordinances.
On July 21, the Marin County Board of Supervisors approved a similar ordinance providing for administrative citations and penalties for violations of public health orders. Similar to the Sonoma County ordinance, enforcement officers, as defined in the ordinance, are responsible for issuing citations and penalties. The ordinance gives discretion to enforcement officers allowing them to issue a notice of violation and provide 72 hours for the party to remedy the violation.
Non-commercial violations of public health orders are subject to penalties between $25 and $500. Commercial violations are subject to penalties between $250 and $10,000. Various factors are taken into account when determining the fine amount, including (1) the gravity of public health risk posed by violation; (2) any previous warnings, notices or citations the responsible party received regarding the violation; (3) whether the violation is likely to result in increased revenue or avoided costs for commercial violations; (4) whether the party was making a good faith effort to comply with public health orders; and (5) any other matters relating to the nature, circumstances, extent or gravity of the violation. The ordinance notes that each and every day a violation occurs is considered separate and distinct offense. Recipients of citations may appeal to Marin County.
On July 14, the Napa County Board of Supervisors adopted an Urgency Enforcement Ordinance authorizing citations for violations of state or local public health orders. The ordinance applies to all incorporated and unincorporated areas of the county. Similar to the Sonoma County ordinance, the Napa County ordinance defines enforcement officers, which includes police officers, code enforcement officers, county public health officers, and various other county officials.
Each day a violation occurs is considered a separate and distinct offense under Napa County’s ordinance. Non-commercial violations are subject to penalties between $25 and $500. Commercial violations are subject to penalties between $200 and $5,000. Unlike the Marin County ordinance, there is no list of factors that are taken into account when determining the citation amount. Citations and penalties may be appealed pursuant to county code. Enforcement officers may issue a notice of violation providing up to two days to remedy the violation.
On August 11, Santa Rosa’s City Council approved an urgency ordinance very similar to the Sonoma County ordinance. The personal and commercial civil penalties, to be issued after a notice, are the same as in the Sonoma County ordinance: $100 per non-commercial violation, and $1,000 for the first commercial violation, $5,000 for a second violation, and $10,000 for each additional violation. One difference of note is an exception for residential rental property owners. The ordinance excludes such individuals from penalties for acts or omissions committed by their tenants.
This information is provided as a public educational service and is not intended as legal advice. For specific questions regarding California cannabis or hemp laws, or the impact of COVID-19 on businesses in California, please contact the Law Offices of Omar Figueroa at info@omarfigueroa.com or 707-829-0215 to schedule a confidential legal consultation.