State College Adopts Ordinance to Enforce Masking, Restrictions on Gatherings

State College Borough Council on Tuesday night unanimously approved a temporary ordinance setting mandates and enforcement provisions for several COVID-19 mitigation measures.

The ordinance, which is not in effect until signed by Mayor Ron Filippelli, requires masks to be worn, with some exceptions, in public. It limits gatherings at most residential properties to 10 unrelated people and at public parks to 25 people. And it restricts waiting lines outside of businesses to 10 people, spaced 6 feet apart and wearing masks.

Among the exceptions to the face-covering mandate, those who have a medical condition, mental health condition or disability that prevents them from wearing a mask are exempt, but must provide within five days documentation from a medical professional verifying the condition in order to not be issued a citation.

Anyone found in violation of any part of the ordinance can be issued a citation for a civil infraction punishable by a $300 fine.

Several council members said that with thousands of Penn State students returning to the area in the coming weeks, the borough needs to adopt what measures it can to enforce virus mitigation strategies. Council President Jesse Barlow said Centre County — which has had 359 total cases and 10 deaths attributed to the virus as of Tuesday — has largely been spared the worst of the pandemic because of the Wolf administration’s early measures, the county’s relatively remote location and Penn State moving to online classes in March.

But the latter two reasons are changing, Barlow said, with the virus spreading in more rural areas and the university planning to return to campus instruction.

‘The one measure we have is more or less what we have in this ordinance,’ he said. ‘This has been dumped on us by a federal government that … has left the states to themselves. The evidence that wearing a mask and distancing is effective against the virus grows with every passing day. This masking ordinance, which our staff has worked diligently on, is what this borough can do to help.’

While Penn State has its own plans for on-campus enforcement of health and safety rules, university officials have said they are relying on surrounding communities to partner in helping to mitigate the virus off-campus. University President Eric Barron sent a letter endorsing the ordinance to council prior to the meeting.

‘If we are going to be successful in returning students to campus, returning employees to work and in safely bringing customers to businesses in our community, we must work together to not only encourage, but enforce, the best public health practices,’ Barron wrote. ‘I view the draft ordinance being considered by Borough Council to be a strong and appropriate step in the right direction to maintain consistent expectations on both sides of College Avenue.’

The ordinance is in effect until Jan. 31, 2021, or until the Pennsylvania Department of Health and Centre Region Council of Governments rescind their emergency declarations, whichever is earlier.

As one of only two home-rule municipalities in Centre County, State College has the ability to do anything not specifically denied by the state laws or regulations. But Borough Solicitor Terry Williams said he believes tying the ordinance to the DOH emergency declaration is necessary.

‘The power of local government is not entirely clear. As a result of that, the reliance is on a provision in the health code that allows you to adopt regulations and clearly the power to do that is related to the concept of an emergency,’ Williams said. ‘There is going to be a debate, hopefully not involving State College, but elsewhere, as to whether a pandemic is an emergency that allows all this to happen at a state level. The point is, you insulate the borough from challenges by saying we are doing this in conjunction with the state’s declared state of emergency. Tying it to that seems to provide a little bit of protection in terms of preserving the validity of what you’re doing.’

Williams added that he had ‘some real concern,’ about the ability to enforce the ordinance and that courts would ultimately decide enforcement results.

‘If an officer issues a citation and there’s a fine, that’s appealable,’ he said. ‘One of the appeals they could make, they could challenge the validity of that type of ordinance. We know from experience with other ordinances that are behaviorally directed, where the fine structure is something they don’t agree with, they have the alternative of finding someone not guilty and they never have to explain why. Or what we have seen them do is assign a lower fine, which members of the judiciary feel they have within their discretion to do.’

Borough Manager Tom Fountaine said the ordinance was developed — in consultation with DOH and Centers for Disease Control guidelines, advice from experts including epidemiologists, and a review of ordinances from other municipalities — to be enforceable.

Here’s a look at what council approved.

Masking

The ordinance’s masking provisions largely reflect those in the Department of Health’s statewide mandate.

Face coverings are required whenever within 6 feet of another person and under the following circumstances:

– Inside any building open to the public, including businesses, nonprofits and government buildings

– On all transport and transit vehicles, including, but not limited to, CATA buses, rideshare services such as Uber or Lyft and shuttle vehicles.

– While waiting to enter any building open to the public, any municipal and other governmental building, or waiting to board any transport or transit vehicle

– When coming into contact with any person who is not from the same family or household, indoors or outdoors, including, but not limited to contact during gatherings, curbside pickup, drive-thru and food truck purchases, deliveries, and service calls.

– While working in any job that entails coming into contact with any member of the public unless separated by a physical barrier.

Parents and guardians are responsible for minor children wearing face coverings, except for children under 2 years of age or those with a medical or mental health condition or disability that prevents wearing of a mask.

Council discussed amending the ordinance in the near future to require mask-wearing at all times in high-traffic areas, such as downtown, regardless of whether the person believes they can maintain 6 feet of distance.

Individuals who would be exempt from the masking requirement include:

– Those with a medical condition, mental health condition or disability that prevents wearing a face covering, if they provide documentation from a licensed medical professional immediately or within five days.

– Persons whose religious beliefs prevent them from wearing a face covering.

– Persons who are hearing impaired, or who are communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.

– Those for whom wearing a face covering would create a risk related to their work, as determined by local, state or federal regulators or workplace safety guidelines.

– Persons who are obtaining a service or treatment involving the nose or face or a medical procedure for which temporary removal of the face covering is necessary to perform the service.

– Persons who are seated at a restaurant or other establishment that offers food or beverage service, and all requirements as established by the Pennsylvania Department of Health are followed.

Fountaine said the religion exception was included because of the constitutional separation of church and state. Several council members questioned what religion prohibits the wearing of a face covering.

Councilwoman Theresa Lafer said that she was concerned some people might take advantage of it.

‘I don’t want to run around town asking, but unfortunately I can see a group of young men thinking it’s really funny to leave their dorm and when somebody says put your face masks on, each of them says ‘Oh, well, my religion says I don’t have to. Ha ha ha,’’ she said. ‘When we get 50 of them together it’s not going to be ‘Ha ha ha.’ So actually there is a question there. I see no reason you can’t say, ‘What religion is that?”

Location exemptions where face coverings are recommended but not required, according to the draft ordinance:

– In personal private vehicles and private homes.

– In private business locations, or in individual private offices, at times when members of the public, clients, customers, guests, or other invitees are not present, as long as there is a distance of at least 6 feet maintained.

– While participating in recreational physical activities, whether outdoors or indoors, involving 10 people or fewer.

– While with family members or members of the same household.

The Board of Health, which reviewed the draft ordinance on Friday, suggested striking ‘in personal private vehicles and private homes,’ from recommended places. Board member James Edwards said that was ‘because there’s no medical data to support that. In fact, the opposite may be true.’ 

Limitations on Gathering Sizes

The ordinance limits gatherings of people not from the same household to:

– 10 people at all residential properties, indoors and outdoors combined.

– Where a household exceeds 10 people, no more are permitted to gather.

– 25 people at borough public parks and other municipal properties.

– Gatherings in other private commercial property are restricted by the limitations established by the Pennsylvania Department of Health, which currently restricts indoor gatherings to 25.

The ordinance’s provisions for limiting gatherings do not apply to to private business locations, private offices, and events such as weddings, funerals, protests, demonstrations, public and private schools and religious functions.

The original draft of the ordinance set a restriction of five people not from the same household at multi-family residences (e.g., apartments) and 10 people at all other residence types. The Board of Health recommended 25 at all residence types, reflecting the state guidance on indoor gatherings.

Council, however, ultimately settled on 10 for all residence types.

Responding to a question about whether there is a Fourth Amendment issue with enforcing the gathering restriction at residences, Fountaine said the ordinance does not change anything about the way police or enforcement officers can enter a property.

‘There would clearly have to be probable cause to go into a building,’ he said. ‘If the gathering were going on behind closed doors and it was not evident and there was not a probable cause to go inside the building to discover that, it would not be enforceable. This would by no means give anyone the authority to enter a property in any way other than they have today. It doesn’t create a right of entry.’

Waiting Lines

Lines in the public right-of-way (i.e., public sidewalks) waiting to enter a business are restricted to no more than 10 people, spaced 6 feet apart and wearing masks. Individuals waiting to enter a business cannot wait in front of another business or property.

Businesses are responsible for monitoring lines for compliance and notifying the State College Police Department if anyone refuses to disperse, wear a face covering or maintain physical distancing.

‘I want to emphasize that those last two items do not require businesses to enforce that ordinance,’ Fountaine said. ‘They require monitoring and then calling the State College Police Department for assistance in the event that a violation is occurring.’

The original draft ordinance also would have prohibited individuals from being in line for more than 15 minutes.

Councilman Dan Murphy said the 15-minute rule would be unnecessarily onerous for business owners, given that masks and distancing are already required. His amendment to remove the time restriction passed 4-3.

‘I feel our local businesses are able to comply and assist with enforcement if we’re able to give them confines in which to do that well.’ he said.

Enforcement

‘Law enforcement and other public safety, health officers, ordinance enforcement officers, and emergency management personnel,’ can enforce the ordinance.

Any person who violates any part of the ordinance is subject to a citation for a civil infraction punishable by a $300 fine. The same goes for a property owner, in the case of owner-occupied residences, or tenant, in the case of rental properties, where a violation occurs. Businesses found not requiring their employees to comply with the ordinance will receive a citation and fine, with each day the violation continues considered a separate offense.

The Board of Health recommended a citation with a warning on first offense and $100 fine for individuals on subsequent violations and $300 for businesses. 

Councilman Evan Myers said despite questions from some about the ability to enforce the ordinance, it was something council needed to act on.

‘I think we have to do it,’ he said. ‘Penn State has implored its students and fraternities and sororities and, most recently, it’s actually implored council to do something. Perhaps it’s because they feel helpless. We can’t be sucked into the same helplessness. We have to try something and if that doesn’t work we have to try something else. We need to act like our lives depend on what we do, because they do.’

Myers said wearing a mask and adhering to distancing are not unfair restrictions, but measures a free society takes ‘to protect the common good.’

‘Distancing from others is not a burden. It’s life saving. Wearing masks provide protection,’ he said. ‘We wear clothes; we can wear a mask. We wear seatbelts; we can wear a mask.’

Lafer agreed.

‘We have responsibilities that go with every single right that we have and one of them is to keep our neighbors and our community safe and healthy,’ she said. ‘We expect that you don’t let rats live in your backyard. We expect that you don’t put toxic things down the drain. And we expect that since you could be a disease carrier even though you don’t know it, just like Typhoid Mary, that you will protect the people around you by wearing a simple mask. It’s not that hard.’