COVID-19 and the Threat of Criminal Penalties for Pennsylvania Businesses

According to guidance provided by the Pennsylvania State Police and the Pennsylvania Department of Community and Economic Development (DCED), summary offenses set forth under the Pennsylvania Disease Prevention and Control Law of 1955 and The Administrative Code of 1929 “are the most directly applicable provision for enforcement” of Governor Wolf’s business closure orders.  Those offenses include the following:

• • Any person who violates an order of the PA Department of Health or any local department of health, relating to disease control measures, commits a summary offense under the Pennsylvania’s Disease Prevention and Control Law. See 35 P.S. § 521.20(a); see also 35 P.S. § 521.5.
  • Any person who violates an order of the PA Department of Health relating to “prevention and suppression of disease” commits a summary offense under The Administrative Code of 1929. See 71 P.S. § 1409; see also 71 P.S. § 1403(a).
  • Any person “who resists or interferes with any” PA Department of Health officer or agent “in the performance of his duties” commits a summary offense under the Administrative Code of 1929. See 71 P.S. § 1409.

Governor Wolf has directed the following agencies and individuals to enforce the business closure orders:

• • PA State Police
  • PA Liquor Control Board
  • PA Department of Health
  • PA Department of Agriculture
  • Local law enforcement officials

Active enforcement of the Governor’s order may likely expose unsuspecting persons and businesses to a criminal justice system with which they are unfamiliar.  Accordingly, it is important to understand the stakes, your rights, and how to interact with law enforcement officers should they appear at your place of business.

While summary offenses are the lowest class of criminal offense defined in the Pennsylvania Crimes Code and are usually only punishable by fines and court costs, non-traffic summary offenses can be punishable by imprisonment of up to ninety (90) days. The specific summary offenses described above are punishable by a fine not to exceed three-hundred dollars ($300) under 35 P.S. § 521.20(a), and a fine not to exceed fifty dollars ($50) under 71 P.S. § 1409. If a violator is in default of payment of the fines and costs under either statute, the court may sentence the violator to a period of county incarceration, not to exceed thirty (30) days.

Summary proceedings are instituted by the issuance of a citation and are rarely instituted by an arrest. Violators are required to plead “guilty” or “not guilty” by notifying the issuing authority in writing or appearing before the issuing authority in a Magisterial District Court or the Philadelphia Municipal Court, depending on where the offense occurred. Violators who plead “not guilty” will proceed to trial before the issuing authority.

Businesses licensed by the Liquor Control Board should also be particularly mindful of specific criminal penalties under the Pennsylvania Liquor Code. Under Governor Wolf’s order, restaurants and bars are prohibited from offering food and beverage dine-in service. Depending on the circumstances, selling alcohol in violation of this order may expose the licensee to a misdemeanor offense, which carries fines not to exceed five thousand dollars ($5,000) and a potential period of incarceration not to exceed one year. See 47 P.S. 4-494(a); see also 47 P.S. § 4-462(a).

All Pennsylvania businesses should also be mindful that providing false information to law enforcement in Pennsylvania, depending on the circumstances, is a misdemeanor of the second degree, which carries a potential sentence of imprisonment not to exceed two years.

The Commissioner of the PA State Police, Colonel Robert Evanchick, announced on March 22 that police and liquor control officers “will make every effort to achieve voluntary compliance by educating business owners and using discretion when appropriate.” According to guidance provided by the DCED, violators will receive progressive discipline beginning with a warning, and enforcement will be “prioritized to focus on businesses where people congregate.”

Tips

• • Unless your business unquestionably falls under the categories of “life-sustaining businesses” in Governor Wolf’s order, or if your business obtained a waiver, you are exposed to criminal penalties if you do not cease physical operations.
  • If your business obtained a waiver, you should keep written confirmation of the waiver at your place of business to present to law enforcement if necessary.
  • Contact counsel immediately if law enforcement officers investigate your business or employees for not complying with the Governor’s order.

Please note, on April 5, 2020, the Pennsylvania Secretary of Health issued an Order mandating enhanced cleaning and disinfecting requirements for owners of large buildings. The Cleaning Order applies to owners of buildings of at least 50,000 square feet used for commercial, industrial or other enterprises, including but not limited to facilities for warehouses, manufacturing, commercial offices, airports, grocery stores, universities, colleges, government, hotels, and residential buildings with at least 50 units.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Meredith Lowry is an associate in the white collar defense and government investigations practice group within the Litigation Department at Klehr Harrison.