‘Not a crime for which you can issue a ticket’: No fast way for county to enforce local health orders pertaining to large gatherings, masks

photo by: Contributed Photo

A large gathering is pictured at a house at 1138 Mississippi St., Saturday, Sept. 12, 2020.

Updated story

Sept. 16 — City leaders express interest in creating ordinance that would make disregarding health orders a municipal offense

There’s seemingly no mechanism in place for quick enforcement of violations of local health orders, according to information provided to the Journal-World by one local law enforcement agency.

That means house parties such as those documented over the weekend in Lawrence — with hordes of unmasked people in close proximity to one another — can’t be easily broken up while the event is ongoing.

But for the second consecutive day, it remained unclear if local law enforcement is actually prohibited from serving as a first responder on public health complaints, or if local officials simply have set up the system in a way that local law enforcement is not responding to the complaints.

On Monday, a Lawrence Police Department spokesman said LPD’s ability to enforce local health orders was “limited by law.” On Tuesday, when the Journal-World asked for details on that law, the department spokesman said the department had no further comment.

Where does that leave members of the public who see a Saturday night party, for instance, and want to do their part to shut the party down before it grows larger and potentially becomes a greater source of COVID-19 spread?

The answer: Reach out to the local health department, Lawrence-Douglas County Public Health. However, know that the health department generally is only open 8:30 a.m. to 5 p.m. Monday through Friday.

Despite that fact, the Douglas County’s Sheriff’s Office on Tuesday told the Journal-World that the health department is the first point of contact for submitting complaints of noncompliance. Only after a staff member of the health department has followed up on the complaint may they refer it to the Sheriff’s Office.

“If a referral is received a deputy will visit the individuals/businesses involved and submit a report to the District Attorney who will then make a decision on pursuing prosecution of such complaints,” Jenn Hethcoat, public information officer for the sheriff’s office, said in an email to the Journal-World.

Given that Lawrence-Douglas County Public Health is not open 24 hours a day, seven days a week — unlike local law enforcement agencies — the Journal-World asked the health department if its gap in availability is concerning. The department did not directly respond to the question.

Health department spokesman George Diepenbrock said that violating a public health order is not a crime for which one can be ticketed, such as for speeding or a minor-in-possession.

“It is also not a crime for which you can issue a ‘ticket’ or short form notice to appear … but one that would have to be charged through the DA’s office through their charging process,” he said.

Diepenbrock said that because a violation of a local health order would be a violation of state law (state law allows health officers to issue public health orders), the Douglas County District Attorney’s office handles prosecution.

“Because such a violation would be a violation of state law, as opposed to municipal law, it is up to the district attorney’s office to handle prosecution based on information submitted to them. Thus, it is not a typical criminal provision nor one that the district attorney has ever prosecuted before the pandemic,” he said.

But according to state statute, a local health officer — while investigating actual or potential exposures to a potentially life-threatening infectious or contagious disease — can call upon local law enforcement to help with enforcement.

K.S.A. 65-129b states that the local health officer “may order any sheriff, deputy sheriff or other law enforcement officer of the state or any subdivision to assist in the execution or enforcement of any order issued under this section.”

When asked why the health department is the first point of contact for submitting complaints of noncompliance with a health order, Diepenbrock said it was part of a “system.”

“In helping work with our partners on enforcement of public health orders we set up a system to manage complaints through phorders@ldchealth.org, especially because we were largely seeking compliance from the public,” he said. “This allowed for our staff to offer guidance to individuals and businesses and compliance visits if needed from public health staff for us to determine if we needed to forward to law enforcement or the district attorney’s office, which makes decisions on enforcing the orders.”

Diepenbrock said the system “does not preclude a law enforcement officer or resident from submitting a complaint about a violation directly to the district attorney’s office as well.”

When Lawrence police officers arrived at a crowded party Saturday night at 1138 Mississippi St., they responded to noise complaints, the police department said, and treated the situation as such. The party did not shut down after the police left, according to a tweet from an onlooker.

The Lawrence Police Department did not respond to the Journal-World’s questions about why other provisions in the city’s code were not used to break up the party. It is unclear, for example, whether the department conducted any inquiries or checked any IDs related to underage drinking. A spokesman for the police department said in an email Tuesday afternoon that the department had no further comments to add from the public statement it issued on Monday.

Diepenbrock noted that the University of Kansas issued campus public health bans to two individuals over the weekend at two off-campus residences. The public health bans typically require the affected students to stay off all campus facilities except the Watkins Health Center for two weeks.

“So, there have been consequences,” Diepenbrock said.


Welcome to the new LJWorld.com. Our old commenting system has been replaced with Facebook Comments. There is no longer a separate username and password login step. If you are already signed into Facebook within your browser, you will be able to comment. If you do not have a Facebook account and do not wish to create one, you will not be able to comment on stories.