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York DA: Not citing open businesses a legal issue, not a political one

Liz Evans Scolforo
York Dispatch

York County District Attorney Dave Sunday said he doesn't anticipate a flood of business reopenings in response to his Friday announcement that York County won't prosecute businesses defying Gov. Tom Wolf's COVID-19 closure order.

"Most businesses are not going to reopen," he predicted on Monday — especially those regulated by the state, such as restaurants, bars, barbers and hair salons.

That's because such business owners have far more to lose than the $200 they could be fined by being criminally prosecuted, according to Sunday.

In addition to the possibility of civil liability, there's also administrative penalties the state can enforce, he said, up to and including license revocation.

Pennsylvania Insurance Commissioner Jessica Altman has warned that many insurance policies have provisions excluding coverage for businesses and individuals "engaging in illegal acts or conduct," such as reopening in violation of Wolf's order.

Sunday said the three-page memorandum of law he released Friday has nothing to do with his opinion about whether businesses should reopen or about Wolf's handling of the pandemic.

"My personal beliefs ... are not important," he said.

York County District Attorney Dave Sunday during an interview at the York County Judicial Center, Friday, Dec. 13, 2019. Dawn J. Sagert photo

'Difficult decisions': Sunday said the only people he consulted prior to making his determination were police chiefs in York County and his first assistant district attorney, Tim Barker. The DA also said that he is not involved in any organized political pushback against Wolf's orders.

"Our state representatives are doing what they think is right based on their constituents, and whether people like it or not, our nation is founded on our citizens' right to free speech and assembly," Sunday said, then noted he takes the COVID-19 pandemic warnings seriously.

"At the same time, I would not want to be in the governor's shoes right now," Sunday added. "He has tremendously difficult decisions to make."

Sunday said his role as York County's top law-enforcement official is to focus on the law.

"Even though this is real and very serious, we have to make sure our laws are applied in a consistent and fair manner," he told The York Dispatch. "My memorandum of law ... is (based on) a direct request from police chiefs to provide them with guidance."

Sunday said some of the county's chiefs sought guidance from him after Wolf's announcement last week that York and other south-central counties would not yet move to the state's yellow reopening phase.

Other district attorneys have made similar announcements since Wolf's decision, and Sunday said he suspects the determination not to reopen south-central Pennsylvania "triggered this cascading effect."

Pennsylvania Governor Tom Wolf speaks during a meeting with The York Dispatch editorial staff at the Dispatch offices Friday, October 19, 2018. Bill Kalina photo

Other county DAs: On Sunday, Lancaster County District Attorney Heather Adams — a former York County prosecutor — announced her office also won't prosecute nonessential businesses that open in defiance of the governor's order. Adams also cited the issue of holding people criminally accountable when they might not understand they are violating the law.

Neither Sunday nor Adams took a public position about the civil and administrative penalties that could be imposed on businesses defying Wolf's directive.

Dauphin County District Attorney Fran Chardo on Saturday announced that his office won't prosecute such business violators unless there are "extraordinary circumstances" because people are following social-distancing guidance and because "using criminal sanctions would not be helpful."

On Friday, Lebanon County District Attorney Pier Hess Graf posted on Facebook that her office won't prosecute nonessential business that remain open. Unlike her Republican counterparts in York, Lancaster and Dauphin counties, Graf criticized Wolf, claiming he has "revoked our personal freedoms and liberties as individuals."

Asked to respond to whether state Attorney General Josh Shapiro shares questions about the constitutionality of gubernatorial directives that are regularly updated and changed, AG's office spokesperson Jacklin Rhoads said the Pennsylvania Constitution gives a sitting governor broad powers in times of crisis.

Lancaster County District Attorney Heather Adams

2 Supreme Courts: She noted the state Supreme Court wrote that Wolf's actions to prevent the spread of COVID-19 are "reasonably tailored to the nature of the emergency" and that the court emphasized the governor has the power to "issue, amend and rescind executive orders, proclamations and regulations which shall have the force and effect of law."

Rhoads also said that the U.S. Supreme Court rejected a request to intervene and issue a stay in Wolf's directives.

Wolf, in a news conference Monday, said, "the judiciary has ruled that I do indeed have the ability" to order businesses remain closed, but acknowledged that "the economic toll is going to be heavy."

The governor said he will not ask the state attorney general's office to intervene in cases where county district attorneys have indicated they will not prosecute nonessential business owners for violating Wolf's closure order.

Chiefs weigh in: Northern York County Regional Police Chief Dave Lash told The York Dispatch that he was one of the police chiefs who asked York's district attorney for guidance, "based on the ever-changing directives and orders coming from the governor's office."

Chief Dave Lash of Northern York County Regional Police

"We were looking for clear and concise guidance from the district attorney," he said.

West Manchester Township Police Chief John Snyder praised Sunday's decision.

"I think it's the right call. ... It clears up what law enforcement should do going forward," Snyder said. "He made a hard decision and, in my mind, it gave police departments better guidance than what we had before. It makes our job a lot easier, for sure."

Springettsbury Township Police Chief Todd King said he, too, was one of the chiefs who previously asked DA Sunday for guidance on enforcing the state's stay-at-home and business-closing orders.

"I am grateful to the district attorney. ... It does clear up a lot of things," King said. "It's very difficult for people to know what they are supposed to do."

Newberry Township Police Chief John Snyder

Enforcing the orders can be difficult too, he said, although there have been few issues in Springettsbury of nonessential businesses defying Wolf's directive.

"I've yet to see any standardization of what the waivers are supposed to look like," King said, so determining whether a waiver was real or simply manufactured by a business owner is a problem. "We have to take the business's word for it."

No citations filed: Sunday said he is unaware of any nonessential businesses in York County being cited for being open.

Springettsbury Township Police Chief Todd King

"If the administrative orders were written in a manner in which they could be fairly applied, then we wouldn't be in this situation," he said, adding that elsewhere in Pennsylvania there is a comic-book store and a guided fishing-tour business with waivers to remain open, while other businesses haven't heard back about their waiver requests.

"By the week, the parameters shift on who's a criminal and who is not," Sunday said.

— Reach senior crime reporter Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.

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