Huntingdon County District Attorney Dave Smith stated Wednesday that his office will not be prosecuting businesses deemed non-life-sustaining that open early, which would violate Gov. Tom Wolf’s orders for non-life-sustaining businesses to close, as he believes such actions are not criminal in nature.
“My job as any district attorney is to enforce criminal statutes. You can have personal options, but it’s my view that this government order is civil in nature and not a criminal statute. Our office is not prosecuting civil cases,” he said.
However, Smith stressed that the governor’s order was deemed constitutional “in a very close decision” by the state Supreme Court April 13 and that another agency such as the Attorney General’s Office could prosecute businesses in violation of Wolf’s order civilly.
“There may be serious civil consequences if they move forward and action is taken against them,” he said, citing loss of any license, permit or certificate required to operate a business.
A bar owner, for example, could lose their liquor license for failure to comply with the governor’s orders.
Smith noted that a request has been made to the U.S. Supreme court the challenges the governor’s orders under the federal Constitution, although they have not indicated whether they would accept the case and they are requesting additional information.
He felt obliged to release a statement this morning after repeated inquiries from Huntingdon County residents who, he said, are concerned about what will happen should they open their businesses early.
“We’ve received phone messages, messages from Facebook and privately about whether we would be prosecuting,” he said.
Bruce Pergament, owner of Bruce’s Lakeside Motors in Huntingdon, has been selling cars online since Senate Bill 841 was passed, allowing for an online notary service, but he said the process has many steps and is cumbersome and now customers can easily go elsewhere to take care of their vehicle needs.
“My customers can now go to State College to buy a car,” he said.
Pergament, who is in strong support of Smith’s decision not to prosecute businesses, has spoken with multiple business owners and said many are still afraid that if they violate the governor’s orders, they will lose their licenses.
“We were told it was going to be two weeks, now it’s a month, now it’s two months. We’re at the point where small businesses have nothing to lose. But if they don’t open soon they’re going to lose their businesses and their licenses along with their homes … I don’t believe this had to go down the way it has and I don’t think it has to continue,” he said.
In another criticism of Wolf’s approach, the board of directors of the Southern Alleghenies Planning and Development Commission (SAP&DC) followed suit with other groups, including the Huntingdon County Commissioners (see related story) and submitted a letter to Wolf, urging him to reexamine the COVID-19 phased reopening plan.
The nonprofit economic and community development organization serves Bedford, Blair, Cambria, Fulton, Somerset and Huntingdon counties, and cites inconsistencies in pandemic metrics, such as new infections rates, deaths and positive/negative testing ratios which are used to designate a county as red, which allows only “life-sustaining” businesses to remain open, and yellow, which lifts restrictions and allows for the in-person operation of all businesses while following mitigation guidelines.
The letter states that, “applying the commonwealth’s now-established reopening criteria, nearly every measure should allow our prudent reopening with aggressive mitigation, i.e., with yellow status.”
The letter goes on to say that small businesses have been disproportionately punished “while larger ones with similar product and service offerings, particularly big-box retailers (arguably substantially non-essential), have operated nearly without enforced restrictions.”
Smith has not heard from other district attorney offices whether they are experiencing similar concerns from their constituents but said that “they may potentially take a different view. I’m trying not to make this political.”
“My heart aches for the local business, personally. I realize these are very tough times and people have to make some tough decisions, but we’re viewing this as far as who this would fall upon to enforce and I don’t believe it’s our office,” he said.
While acknowledging the difficulty facing small business owners, his advice is to seek a waiver for businesses deemed non-essential.
“It’s difficult for a law abiding taxpayer to say, ‘Well, if I can mitigate the harm from COVID-19, why can’t I be open?’...Particularly when Gov. Wolf has a cabinet company that was able to get a waiver when no other cabinet company was able to. But I strongly encourage people to seek the waiver process for non-essential businesses and to outline how they’d mitigate the potential harm.”
Smith is just hoping the countywide lockdown ends sooner than later.
“My prayer and my hope is that we’ll get through this relatively quickly,” said Smith.
Nathan can be reached at firstname.lastname@example.org.