City leaders considering ordinance to make violating pandemic health orders a municipal offense
photo by: Chris Conde/Journal-World File Photo
In the wake of multiple large house parties over the weekend, Lawrence city leaders say they are interested in considering an ordinance that would make it a municipal offense to violate local health orders put in place to deter the spread of COVID-19.
After a debate during the Lawrence City Commission meeting Tuesday, a majority of the commissioners said they were interested in at least considering such an ordinance. The commission had received letters from the public saying that house parties had been occurring in neighborhoods near the University of Kansas campus on a regular basis, and some commissioners felt strongly that the city needed to do more to enforce the health orders and address irresponsible behavior.
City Manager Craig Owens said that the county’s Unified Command and the local health department had anticipated voluntary compliance in their approach to enforcing the health orders, and that the possibility that a complaint could lead to the district attorney filing charges would have been enough of a deterrent. He said up until last month that approach had worked fine, but a city ordinance would give police more enforcement power.
“(An ordinance) would allow our police department to consider these violations of health orders as a municipal offense, so we would be in the game, if you will, of trying to gain compliance on the scene,” Owens said.
City Attorney Toni Wheeler said the city’s legal staff believes that under home rule powers, the city could pass an ordinance that would make it unlawful to disregard county health orders. Wheeler said that the offense would be a misdemeanor that could be prosecuted in municipal court. She said the city has drafted an ordinance that makes such a violation a class C misdemeanor, which would be punishable by a fine not to exceed $500, incarceration not to exceed 30 days, or both.
However, Vice Mayor Brad Finkeldei and Mayor Jennifer Ananda said they were not sure that creating a municipal ordinance would be the best approach, and that perhaps stronger disciplinary action from KU, such as bans from campus, mandatory quarantines or suspensions, would be more effective. Finkeldei said he was not opposed to considering an ordinance, but that much like with underage drinking, he would expect some would disregard the law and that it would be difficult for police to enforce.
Ananda emphasized that preventing such events from occurring should be the commission’s focus, and she questioned how effective a potential misdemeanor issued after the fact would be at preventing future house parties. She also expressed concern about young people, whose brains are still developing, ending up with a criminal record because of such violations.
Commissioner Courtney Shipley said that she appreciated Ananda’s points, but that a better way to prevent mass gatherings of young people would have been to not have had in-person classes at the University of Kansas, which brought about 20,000 people to the city. She said relying on voluntary compliance was not realistic, and that there should be an immediate consequence for those who ignore health orders.
“Our community worked so hard to abide by the directives of the health department and (health officer Thomas) Marcellino,” Shipley said. “It is unaccountable for us to not have a plan to stop those gatherings, which were very predictable.”
Commissioner Stuart Boley said he thought the commission’s focus should be on protecting the vulnerable people in the community.
“How do we do that effectively?” Boley said. “We’ve been hearing comments from people who have been telling us they feel abandoned, and that’s what we need to address.”
Commissioner Lisa Larsen said the parties have jeopardized the safety of the community and she wanted to know what the city could do to provide better protection for residents. Ultimately, Shipley, Boley and Larsen said they would be interested in considering an ordinance.
The commission also tried to clear up confusion around how health orders are enforced. In response to questions from Boley, Deputy City Attorney Randy Larkin said the district attorney is the enforcement agency established under statute. Larkin said that police officers as well as individuals can make complaints with the district attorney, but that the police department doesn’t really have any enforcement authority under local law. Larkin did not immediately respond to follow-up questions from the Journal-World on Wednesday to clarify specifics regarding what actions law enforcement can currently take under the health order, among other clarifications.
In response to an inquiry from Shipley, Interim Police Chief Anthony Brixius said the department has had great difficulty working through how to enforce the health orders because there are various legal statutes and no case law to go off of. Brixius said an ordinance would give police some additional power to stop and detain based on health orders, but there would still be some limitations on arrest powers and compliance.
“I would tell you, with a lack of standing, with a lack of case law on this, it would probably be a lighter hand in enforcement, meaning it could certainly be a citation and we certainly may disperse some parties with some compliance,” Brixius said. “But lack of compliance would leave us again in a bit of a difficult situation of testing whether we feel like we’re in good standing based on the situation we’re being presented with in that particular moment.”
Brixius also spoke to Ananda’s concerns about having police enforce health orders.
“I also would somewhat echo what Mayor Ananda said in that, you know, we’ve had some discussions about what things we want police to be involved in,” Brixius said. “This is going to create conflict and I just think everybody needs to be aware of that.”
Local conversations about enforcement continued Wednesday. County Administrator Sarah Plinsky said that representatives of the county, the district attorney’s office, KU, Lawrence-Douglas County Public Health and the Chamber of Commerce met on Wednesday. Though Plinsky said no decisions were made regarding enforcement, she said it was clear the current approach that relies heavily on voluntary compliance was not working in some regards. She said that an announcement communicating a “clear enforcement strategy” would be made in the next few days.
“We were all very hopeful that we would have voluntary compliance with public health orders since the beginning of the pandemic, and what we have found is that unless you have strong enforcement, voluntary compliance is just not there in some of these areas,” Plinsky said. “… How do we approach situations where that is not happening and what are the right tools to approach that situation? We clearly need to articulate that to the community.”
Also on Wednesday, the city announced that the City Commission would hold a special meeting on Thursday at 5:30 p.m. to consider the ordinance discussed Tuesday. The ordinance would make the public nuisance of “knowingly causing or permitting a condition to exist which injures or endangers the public health, safety, or welfare” a municipal offense.
A memo from the city attorney’s office to the commission states that if the ordinance were passed, such cases would be prosecuted in municipal court and police would have the authority to enforce the ordinance and issue citations. City attorneys are recommending the commission adopt the ordinance on first and second readings as part of Thursday’s meeting, meaning that the ordinance could be finalized before the weekend.