Amarillo City Council will fine businesses who are found ignoring COVID-19 rules: Our take on the issue…..

This week, the City Council in Amarillo voted (4-1) to impose a City-wide ordinance (No. 7893) declaring a site (business) that fails to meet certain minimum standards designed to prevent the transmission of COVID-19 as a public nuisance.  In short, the Council voted to impose upon local businesses the responsibility for ensuring that other people, patrons, customers are wearing facial masks.  The process of enforcement would begin with “educating” a non-compliant business owner.  Step two would be to “cite” or “formally warn” a non-compliant business owner.  And ultimately, if an employer remained non-compliant, they would be fined up to $2000 per day of non-compliance.

The City Council opened the special meeting up to public comment on the ordinance, and boy was it interesting!  Before I get to that, I will define “non-compliance” real quick.

Unless I am incorrect, a BUSINESS would be responsible for ensuring that their customers, not just their employees, but their patrons and customers donned masks.  If any business was found to be habitually non-compliant, meaning, if the business did not enforce this City ordinance on all of their current patrons, guests, shoppers, customers…..well, they would be fined.

What the special Council meeting public comment portion turned into was a debate over the effectiveness of masks themselves, and the point was entirely missed by the commenters.  Doctors even called in to the virtual meeting, citing studies and research that show masks work.

Uh, that’s not the point……

This ordinance isn’t to settle some dispute over how effective masks are.  If the City leadership determines THEY want to impose a City-wide mandate, that’s fine with me.  I get it, they need, at the very least, to be seen as trying to do something to slow the spread of Coronavirus in the community.  After all, we’ve been on Fox News this past week……

The issue is over who should be the ones enforcing the mandate.  It’s not really even a legitimate question, or at least it shouldn’t be.

The City doesn’t ask businesses to enforce speed limits.  They don’t ask us to enforce building codes.  They don’t fine fire work stands when citizens shoot them off inside the City limits. 

The City has placed business owners in a position to alienate clients and customers both NOW, and in the future.  Here’s how.  “Do you remember that store owner who made us leave his store back during COVID because we weren’t wearing masks?  Ya, I’ll never buy furniture from them, ever”…..( insert same scenario for virtually every other business who attempts to enforce YOUR mandate). 

This City ordinance is not about the efficacy of masks, it is about who the City is saddling with the responsibility of enforcing the ordinance!

In Texas, the Local Government Code outlines a City’s authority to enact ordinances within its jurisdiction.  These ordinances are typically enforced by local law enforcement agencies such as city police departments.  Sec. 54.004.  PRESERVATION OF HEALTH, PROPERTY, GOOD GOVERNMENT, AND ORDER IN HOME-RULE MUNICIPALITY.  A home-rule municipality may enforce ordinances necessary to protect health, life, and property and to preserve the good government, order, and security of the municipality and its inhabitants.

There is no debate on the City having the authority to issue ordinances.  But read the first sentence again, “A home-rule municipality may enforce……”.  Where does it say, “A home-rule municipality shall force businesses to enforce…..” any type of ordinance? 

In fact, under the broad enforcement authority given to Cities, like our’s, under section 54.001 of the Local Government Code, Cities can designate CERTAIN individuals to enforce City ordinances.  However, those persons  are required to be registered as a “code enforcement officer” in order for the City to engage and/or hire them.  Those people can’t even become “code enforcement officers” without at least one year of training and full-time experience.  They must also pass an exam administered by TDLR and keep up with continuing education hours.

Next, only a peace officer, certified by the Texas Commission on Law Enforcement is authorized to issue a citation compelling a person to pay a fine or appear in court on a certain day.  This holds true for a violation of either state law, or a city ordinance.  More on this point in a moment.

So, the City of Amarillo wants businesses to enforce City ordinances all of a sudden.  Question:  Can I write a ticket to non-compliant customers?  Can I arrest them?  The answer is “no”…..

Translation:  The City doesn’t want to do its own dirty work.  They want local businesses to do it for them. 

The City is responsible for enforcing ordinances, not me, a local business owner.  I mean, they literally have city employees who drive around town looking to “cite” or “warn” or in some cases “levy fines” on people whose grass is too tall, or whose dog is freely roaming the neighborhood, or whose chickens got out of the hen house!  Now they want local businesses to enforce ordinances? 

This is somewhat cowardly.  This is politics.  No one wants to get their hands dirty and tell the citizens, “Hey guys, COVID is running rampant, hospitals are at max capacity here, gotta do something.  We’re going to start citing offenders who are in public places without masks.”  Instead, they’ve chosen to cite and fine businesses who rely on the good-will of their client/customer base for the livelihood of their organizations.  Now we’re being asked to be the City’s enforcement arm, or face penalty.

At one point in the Special Council meeting, a person making public comment made the point, as a business owner, that he was and has never been approached by the City and asked to serve in this way.  Instead, he also pointed out, it feels imposed by the City.  To those comments, City leaders could visibly be seen shaking their heads as if they were in disagreement.  I can only imagine the thoughts that may have been circulating in their mind, “We’ve tried asking nicely.  We’ve had campaigns to get people to comply.  They didn’t work.  Now it’s time to enforce. Now we have to get the stick out.”

FINE!  If that is the consensus attitude of the Council, I’m not even going to disagree with the mindset and opinion!  Still doesn’t justify shirking your own responsibility of enforcing your own City ordinance.  In addition, the City also has a bully-pulpit that no one else in this community has.  If Mayor Nelson wanted to go on the television 3 times per day to spread the message, issue warnings, remind people there will be penalties, she could do so.  But no one wants to be the bad cop.

The City is setting itself up for future litigation for certain.  For example, say a local business ends up getting one of these fines.  How can you fine a business owner for something they are not responsible for, and that doesn’t possess the authority to enforce? 

After public comments, the conversation again devolved into a discussion on  the efficacy and effectiveness of masks, including comments by City Attorney Bryan McWilliams.  Whether they work or not isn’t the issue, and not a single CDC guideline has suggested that local business owners be mandated and assigned the responsibility with enforcing any ordinance, much less this one.  The ordinance does MUCH MORE than just put state measures and standards in place, which was stated by Mr. McWilliams.  This ordinance effectively puts the responsibility of enforcement upon people who are not licensed and trained code enforcement officers. How? By leveling fines on businesses who aren’t enforcing the ordinance upon their customers.

The City’s authority is clear, it can impose ordinances.  But the same Local Government Code also speaks about “who” can enforce those codes, and guess what, business owners aren’t listed.  And if you are going to fine/penalize business owners for non-compliance, you ARE IN FACT assigning responsibility of enforcing the ordinance to them. 

At one point, Mayor Nelson asked the City Attorney, “Are we asking citizens to issue tickets?”  What kind of question is that?  A citizen CANT issue a ticket, even if the City asked them to. Only a peace officer can issue a citation.  Yet, the City Attorney went along with this misleading line of questioning, responding in a way that made it seem like the City was being somewhat reasonable about not asking citizens to issue fines to other citizens! 

Mayor Nelson said there was a difference between requiring masks to be worn in your business vs. enforcing masks in your building.  With respect, not when you start levying fines for customer non-compliance.  What she’s saying is, “No, we’re not saying a business owner HAS to enforce the mask mandate in their building…..but yes we’re going to fine/penalize you if you don’t.”  Legally speaking, isn’t it the same thing? 

Mayor Nelson also tried equivocating the issue to “any other ordinance violation citation” stating, “This is not different than any other City ordinance violation that they receive a citation for.”  Really Mayor Nelson?  If that is the case, I think I’ll get in my car, drive around town, and start “enforcing” the noise pollution ordinance.  What’s to stop the City from issuing a fencing company a citation because someone’s dog got out of the yard and violated the leash law?

I’m also concerned about how the City Attorney mis-represented Governor Abbott’s state-wide mandate, GA-29, which clearly states, “Local law enforcement and other local officials, as appropriate, can and should enforce this executive order…”  Not local businesses.  In fact, the Governor’s Executive order is entirely about individual “persons”, and nowhere does it state anything about businesses being responsible for compliance.

Bottom line:  I’m not opposed to a City ordinance that says mask wearing is mandatory, and there will be penalties enforced on those who are non-compliant.  I am opposed to imposing the enforcement of such an ordinance on local business owners.  That is absurd, and it sews dissention in our community, pitting business owners against potential customers, creating this environment where business owners must enforce an ordinance which could alienate their business from current and future patrons.  And to be clear, you ARE transferring responsibility for enforcement when you threaten penalty on the business for not enforcing the ordinance.

It’s time for leadership, and as often required, time to do the hard things, the unpopular things.  Don’t ask others to do the hard work for you. Own it.

You can watch the entire Special Meeting HERE and all the public comments.