May 11, 2020 will go down in history as the day the Governor Wolf lost control of the state.
In a series of statements today, Governor Wolf called the counties seeking to reopen against his wishes “cowardly.” He stated that businesses who reopen against his wishes could face loss of licenses, certificates of occupancy and insurance on their properties.
First, I take great offense to the Governor calling the county leaders cowardly. Questioning authority is never cowardly. This country was founded on the founding fathers questioning authority. Nearly every innovation that this Country has ever made was based on someone questioning authority, and saying “I can do it better.” Governor Wolf does not seem to understand that his program for reopening the state is based on a series of educated guesses. There is no scientific consensus as to the procedure for reopening, which is why no two states and no two countries are approaching the situation identically. This is a situation that has never been seen before in the history of mankind. You cannot predetermine a “right” way of doing something that has never been done before.
I am proud of any community leader that is willing to question the status quo and is willing to study the facts and come to their own conclusions. Contrary to what some suggest, none of the community leaders are being reckless. Every one of them are talking about the steps that will continue to protect the elderly, children and those otherwise at risk.
Calling someone cowardly is cowardly in itself. Calling someone a coward is an effort to stamp out dissent. A true leader, a brave leader, has no problem facing dissent and rationally addressing it.
We continue to believe that the one size fits all approach advocated by the Governor cannot work and that individual communities should be allowed to make their own informed decisions during the pandemic.
As to stripping individuals or businesses of their licenses, certificates of occupancy and insurance, could the Governor actually do this? The short answer is that the Governor could try, but he’s got quite a battle in front of him.
As to licenses, most professional licenses are overseen by the Pennsylvania Department of State. There are 29 professional licensing boards that operate in conjunction with the Department of State. The Pennsylvania Department of State is an executive agency and falls within the control of the Governor. The Department of Education Controls Teaching Licenses. The Supreme Court controls law licenses.
The requirements to get a professional license are set by statute or by regulation. As such, the license eligibility requirements cannot easily be changed by the Governor. Licensing requirements would have to be changed by the PA legislature (for a statute), or by the overseeing agency (for a regulation). As there are dozens of types of licenses, it is well beyond the scope of this blog post to discuss them all. However, we can discuss general requirements.
Obviously, there is no law that says that your professional license must be revoked for defying a Governor’s order during a state of emergency. Some licenses can be revoked for being charged or convicted of certain misdemeanors or felonies. However, violation of the Governor’s order is only punishable (if a District Attorney will even charge you) by a summary offense. All licenses have a “good character” requirement, however there is no uniform definition of “good character” – which is likely violative of Article 2, Section 1 of the Pennsylvania Constitution, void for vagueness and violative of the the rule of lenity. Nevertheless, I believe that this is what the Governor is threatening. If an individual defies his order, he is going to instruct the Department of State to label them as having “bad character” and try to revoke or suspend their license. There is no precedent for this. The Governor would be trying to make new law over a large group of people if he pursues this route.
Failing to follow an order is a type of contempt. Contempt based offenses, as could be filed for violating the Governor’s order, require a specific state of mind. In criminal law, a small number of offenses are strict liability offenses; for these offenses the state of mind of the accused doesn’t matter. For all other offenses, there is a specific state of mind (mens rea) that is required. For someone to be guilty of a contempt offense, they must have intent. Intent means that a defendant is aware of an order they believe to be valid and they willingly choose to defy the order.
An excellent defense to this contempt theory would be an equally valid conflicting order. As discussed in a prior post, municipalities can pass ordinances to allow businesses to reopen. If the municipality where your business is located passes an ordinance contrary to the Governor’s order that provides a strong defense to a citation or to a claim of bad character.
For this reason it is very important that local municipalities do more than just issue a statement permitting businesses to reopen. A properly enacted municipal ordinance permitting businesses to reopen will provide the best defense against a citation or license issue later.
The comment about certificates of occupancy is a bluff. Certificates of occupancy are not controlled by the Governor or the state. Certificates of occupancy are issued by individual municipalities. While a municipality could revoke a certificate of occupancy for failing to practice proper sanitation, the Governor cannot direct this. If a business’ municipality passes an ordinance saying that a business may reopen and the business follows the local ordinance, then there is no reason for the municipality to revoke the occupancy permit.
Finally the Governor has threatened to revoke insurance. The Pennsylvania Department of Insurance regulates insurance companies. The Department of Insurance makes sure that insurance companies have enough resources available to cover potential claims. The Department sets insurance rates and also can penalize insurance companies for unreasonably failing to pay compensable claims. I have been unable to find any authority that would allow the Insurance Department to revoke the insurance for an insured individual or business.
There were some additional comments made about the fact that insurance may not cover an injury that occurs during an illegal activity. This is actually true. However, there are a number of issues with that. If a municipality issues an ordinance that says a business may reopen, is the business operating illegally? That’s not a good argument for the insurance company. Additionally, to deny coverage, the injury normally needs to be a result of the illegal activity. It is difficult to see how that would work in this case. For example, if a business opens in violation of the Governor’s order and a customer slips and falls, is the injury a result of “illegal activity.” Of course not, the injury is a result of a slippery floor. The Governor’s order has nothing to do with a slippery floor. This threat to lose insurance is yet another illusory threat with no real teeth.
For all these reasons, it is certainly possible for the Governor to try these punitive measures, but it is very unlikely they will be successful.
The best thing that business owners can do at this time is to support their local elected officials and get those officials to enact a reasonable clear ordinance to reopen local businesses.
We are happy to review your specific license or business situation and tell you whether you should have any concerns in reopening.
If you or someone you know want to review your specific license or business situation or has had your rights violated by Governor Wolf’s Order, contact us today to discuss your rights!