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Divided City Council struggles with mask enforcement

A sharply divided Hendersonville City Council has directed the city police department to issue citations to business owners who are repeatedly and flagrantly flouting face mask and social distancing rules, though just how that will work is unclear.

In a discussion that grew heated last Thursday night, council members Lyndsey Simpson and Jerry Smith argued most strongly for law enforcement’s role in forcing compliance with Gov. Roy Cooper statewide face mask order while council member Jennifer Hensley pushed back.
“This is a really heavy-handed overreach for the City Council to try to enact something like this,” Hensley said. “This mask order is an executive order, it’s not a law. There’s actually a provision in the executive order making this unenforceable” as a criminal violation. “In this political climate, I think it’s really crazy that we would put added stress on our officers to even engage in that kind of dialog with our business owners in addition to the fact that our business owners have suffered enough and several of them are hanging on by a thread and to put this added stress on the business owners — I’m just disgusted that we’re even having this discussion.”
When she spoke to District Attorney Greg Newman, he pointed out that courts are already extremely backed up because of the coronavirus social distancing and indoor assembly restrictions. He also expressed concern that the executive order would be enforced inconsistently within the county’s boundaries, she said.
“So we’re going to start putting a business owner ahead of a child rape case or a domestic violence case and back the court system up even more, especially for something that’s not even enforceable in the first place,” she said.
Simpson defended the governor’s order as a necessary tool to curb the spread of the coronavirus and save lives.
“That’s my No. 1 goal, is to protect the health and safety of our community,” she said. “I’d be curious to know how it’s not enforceable. I understand that businesses are under a lot of stress right now and some of them are hanging on by a thread but you also have a responsibility to provide a safe environment for your customers.”
She had heard from business owners who are “hoping that we will enforce this,” she said. “I don’t think the idea of us having this conversation is at all crazy. I think the community and the residents and the business owners are looking to us as city officials to lead them and lead by example.”
Jerry Smith said he had had numerous conversations to try to learn how the city could enforce the order.
“There does seem to be a difference of opinion as to what we can do,” he said. “I’m not talking about people walking down the street or individual customers. I’m talking about business owners” openly ignoring the order.
City Attorney Sam Fritschner described what cities can do.
“The executive order permits local government to enforce the executive order with criminal citations only against business owners that do not comply with the executive order and there are exceptions so in certain circumstances they can and in certain circumstances they can’t,” he said. The order makes it easier to compel employees to comply than customers, he added. Police could issue a class II misdemeanor charge for a violation, punishable by a $1,000 fine, 30 days in jail or both.
Council member Jeff Miller, owner of Miller’s Fine Dry Cleaning in Hendersonville and Laurel Park plus a laundromat, brought his own experience to the discussion.
“As a business owner that has a lot of people coming in and out, right now I’ll do anything I can that has a little bit of a chance to help, and I do believe wearing a mask will help lessen the spread, keep our emergency rooms and our doctors from being stretched and keep folks from dying.” However, “I never did understand why this was directed to the business owner to enforce this.”
“I do think people should wear masks,” he said. “When we wait on customers, we have masks. When I go in any store, I have a mask. So it’s not that I disagree with wearing masks. I encourage everybody to do it because I don’t want to shut down again, be it from the governor’s order or from fear, because my business will not survive anything like that again. But I don’t like this approach. I don’t want our police officers having to go and judge on these things, whose doing it and what were the circumstances around it. I, too, am not for this even though I’m totally for wearing masks.”
Mayor Barbara Volk said to ignore business owners who flout the order is unfair to those who obey the rules.
“My concern,” she said, “is those businesses that are hanging by a thread” next door to a business whose owner says, “‘Don’t worry about it, you work for me, you don’t have to wear a mask.’ Those are the types of businesses that I think deserve to be more than just reminded. That’s a slap in the face to the people who are doing what has been requested of them.” After multiple complaints from the public and a warning, “Those are the people that deserve to get a citation.”
Council members again turned to Fritschner to explain the business owner’s authority.
“The executive order requires the business to require both (employees and customers) to wear masks,” he said. “However, if the customer says I can’t wear a mask because of any large number of reasons (spelled out in the order) the owner does not look past that statement. That statement is sufficient to say, ‘I accept that at face value’ and that’s pretty much an immunity from prosecution. That is not true with respect to employees.”
Jerry Smith said: “I recognize that asking business owners to be the ‘police’ is very unfair. With regard to whether or not the D.A. decides to prosecute, that is the case with anything we decide to charge now. That’s on the D.A. All we can do is issue the citation and let the judicial system run its course.”
As for rather City Hall is receiving complaints, Volk said, “Every few days I’ll get a complaint. There are a few businesses that I get regular complaints about.”
City Manager John Connet said, “I’ve had one direct conversation with the health director and in one particular instance, yes, he has gotten complaints and tried to approach the business owner about that.”
The back-and-forth sputtered to a somewhat squishy resolution after Miller urged the council to “move on” rather than “discuss it to death.” Although the council took no vote, Connet did his best to articulate the consensus of a council majority — Volk, Simpson and Smith.
“I think I understand the consensus is that a majority of the council would like for the police department to enforce executive order 147 when businesses are blatantly and aggressively avoiding enforcing executive order 147,” he said. When there have been complaints and the business has been “appropriately warned and they have basically made it known that they’re not going to follow the executive order, you would like the police department to issue a citation under the executive order, which would then be prosecuted or not prosecuted by the district attorney.”
“Kick ‘em while they’re down,” Hensley said.