Crime and Justice

State, Burlington outline penalties for COVID-19 scofflaws

Attorney General TJ Donovan, left, outlined on Friday how his office will enforce measures ordered by Gov. Phil Scott, right, to stop the spread of Covid-19 in Vermont. Photos by Kit Norton/VTDigger and Mike Dougherty/VTDigger
Attorney General TJ Donovan, left, outlined on Friday how his office will enforce measures ordered by Gov. Phil Scott, right, to stop the spread of COVID-19 in Vermont. Photos by Kit Norton/VTDigger and Mike Dougherty/VTDigger

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This story was updated at 6:30 p.m.

State and city officials took additional steps Friday to increase compliance with Gov. Phil Scott’s stay-home directive, announcing fines would be issued to individuals and businesses that flagrantly don’t follow the rules. 

The efforts are designed to improve compliance with social distancing practices, make sure only “essential” businesses are open and close off people in hot spots including the New York metro area from staying in Vermont lodging establishments.

Vermont police won’t be stopping motorists anytime soon to ask why they aren’t following stay-at-home orders. They’re not authorized to arrest anyone for operating a business deemed non-essential. But after “reasonable attempts” to get scofflaws to comply with the directives issued by the governor last month to suppress the spread of the COVID-19 virus, the state will assess penalties of up to $1,000 per day.

After an increasingly vocal chorus of calls for stronger enforcement, the state Attorney General’s Office on Friday released a directive aimed at state’s attorneys, sheriffs, and police regarding how they should handle people who aren’t complying with Scott’s directives to stay home and avoid contact with others. The order extends to April 15.

The directive will ensure that law enforcement officials are responding to complaints and infractions in a uniform manner everywhere in Vermont, said David Scherr, co-director of the Community Justice Division at the AG’s office. By statute, the office is the only entity that can file a civil complaint that might include injunctive relief – such as asking a judge to order a business to stop operating. 

“It’s a basic fairness issue and statewide coordination issue to make sure everyone in the state is being treated the same way and responded to the same way,” and to make sure one office is handling all of the decisions, said Scherr. “We’re not looking to bring the hammer down and start enforcing. We want to make sure everyone is being treated fairly and uniformly.”

City officials in Burlington announced Friday they will be issuing tickets to people not complying with the governor’s directive.

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Scott’s orders last month closed dine-in service at bars and restaurants and closed non-essential businesses and prohibited all non-essential gatherings of more than 10 people, indoors or outdoors.

In a March 24 addendum, Scott directed that “all businesses and not-for-profit entities in the state shall suspend in-person business operations.” Since then, state officials have been fielding calls from people asking if their own business fits the definition of essential. They’ve also heard from members of the public wondering why others’ seemingly non-essential businesses remain open in the face of the orders.

Law enforcement officials will now be following up on such complaints with a primary goal of letting people know if they’re violating the order, and how to comply, said Scherr. 

“It’s really a focus on education and voluntary compliance and finding help where people need it,” he said. 

But if the violations continue, the AG’s office could determine whether civil or criminal charges are warranted. 

“It will be at the discretion of our office to decide if any court action is taken, and if any court action is taken, what venue that would be in,” he said. 

The hoops are coming down at Pomeroy and other city parks along with other restrictions to stop the coronavirus spread. Photo by Mark Johnson/VTDigger

The AG’s office also Friday issued an order that contains penalties of up to $1,000 for lodging establishments that ignore a March 30 executive order to cease operations except in limited circumstances, such as providing housing to medical workers aiding in the COVID-19 effort. 

Until Friday, state officials had said they were going to rely on voluntary compliance with the governor’s executive orders. The Agency of Commerce and Community Development has published a detailed list with more than two dozen sectors of business to help owners and managers determine if they were essential or not. On April 1, Commerce and Community Development Secretary Lindsay Kurrle said her agency was asking people to make their best judgment about where their business belonged on the list. 

The order that the Attorney General’s Office issued Friday indicates state officials will now help businesses clarify what list they are on. 

“The Department of Public Safety has authority to inspect the premises and records of any employer to ensure compliance with Executive Order 01-20. 20 V.S.A. § 40(a),” said Friday’s order from the Attorney General’s Office. “Police agencies will work cooperatively with the Department of Public Safety and the Office of the Attorney General in assessing whether to request such an inspection.”

The office on Friday defined “reasonable attempts to gain voluntary compliance” as trying to contact individuals or entities and asking them to comply, and warned “if noncompliance continues, law enforcement will report those issues and the Attorney General’s Office will work with law enforcement to develop an appropriate response.” A civil violation could cost lawbreakers up to $1,000 per violation per day, and a criminal violation could cost up to $500 fine and/or up to six months imprisonment. 

The executive order does not authorize road closure or the establishment of roadblocks, checkpoints or the authority to demand identification, the order said.

“You will continue to see motor-vehicle and pedestrian traffic as Vermonters pursue permissible activities outdoors and travel to and from businesses and entities that are continuing to operate under the Order,” said the Attorney General’s Office.

“Accordingly, the Order does NOT establish cause to initiate a motor vehicle stop.”

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The AG’s office used a close reading of Vermont statute as it created its order, and also looked at what action other states were taking to enforce COVID-19-related executive orders. 

“We’re continuing that research, expanding it nationwide, and hoping next week internally to have a better sense of legal precedent around the country,” said Scherr. “There doesn’t seem to be a whole lot of legal precedent.”

State officials have raised concerns about people traveling to Vermont from other hot-spot areas, including the New York City metro area. Lodging establishments can only take in guests who provide essential services including medical personnel. Some hotels have also been used to quarantine people who may have been exposed.

In Burlington, individuals who repeatedly ignore Gov. Phil Scott’s “stay home” order could face fines, Mayor Miro Weinberger announced Friday. 

The fine for the first offense will be $100, which will increase to $250 and then up to $500, according to the city. These municipal civil tickets are permitted under the directive without consultation with the attorney general, according to city attorney Eileen Blackwood. 

Deputy Police Chief Jon Murad said that tickets will be given at officers’ discretion.  

“If we witness people who are refusing to accede to education, who are refusing to accede to pleas for collaboration and cooperation that keeps everyone safe, then officers will take next steps as appropriate,” he said.  

Burlington Deputy Police Chief John Murad. Photo by Glenn Russell/VTDigger

The move comes one day after the city park’s department closed basketball courts, tennis courts, dog parks and playground to help slow the spread of the virus.

Lia Ernst, a staff attorney at the Vermont American Civil Liberties Union, said that the municipal and state governments should encourage voluntary compliance and education. 

“Ticketing could have adverse economic impacts at a time when we’re all very anxious about the economy,” she said. “And then, as always, we worry very much about the risks of discriminatory enforcement.”

Exemptions to the governor’s order are broad and vague, Ernst said. 

“Any time we are giving officers expanded discretion to initiate new and additional stops and possibly tickets, we want to be very careful about how that discretion is being exercised,” she said.  

Ernst said she was encouraged that Donovan’s order states that authorities must attempt education and encourage voluntary compliance before taking enforcement action.  

“The AG’s order contemplates several steps being taken before escalating to civil or criminal enforcement, which is of course what we would call for,” she said. 

Murad said those who were not social distancing were “undoing” the work of those who were staying home. 

“Those sacrifices ought not be undone by a small number who are either purposefully or just recklessly ignoring the orders everyone else is following,” Murad said. 

Murad said that education would continue to be the department’s priority, but civil violations would be issued to those who have ignored the governor’s order and the department’s education efforts. 

Overall, Weinberger said that city residents had been overwhelmingly following the order and social distancing guidelines. But that has not been the entire population, he said. 

“There has been a small minority of individuals who have not been complying, some of them willfully not complying,” he said. 

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