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Volume XI, Number 216

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As COVID-19 Rates Spike in the Cold, Enforcement is Taking Off the Gloves

With COVID-19 cases continuing to rise throughout New England, state officials in the region are turning from education to enforcement with respect to the executive orders and sector guidance currently in effect.  

Violations primarily concern restaurants, with lack of mask wearing and social distancing as the key issues cited, but enforcement actions against violations of travel orders also appear to be on the rise. Most jurisdictions still provide for a warning before taking enforcement action, but have moved away from repeatedly encouraging voluntary compliance to more quickly imposing punitive measures after issuing a warning. 

Below are state-by-state examples of enforcement actions and penalties in New England:

Connecticut

In late November, Governor Lamont issued an executive order increasing the fines for violations of COVID-19 sector rules and capacity limits to $10,000 per violation, with some exceptions.  Local health officials and municipal designees, as well as law enforcement, can issue the fines. Other fines in effect include $250 for attending events over capacity limits, $100 for failure to wear a face mask or covering when in public, and up to $500 for violations of the state’s travel advisory. An earlier order expanded the definition of “public nuisance” to include violations of sector rules, subjecting violators to investigation and enforcement as applicable under the state’s related general statutes, regulations, and local codes or ordinances related to public nuisances.

Both state and local authorities have shut down more than 10 restaurants and entertainment facilities for violations of executive orders, in addition to issuing numerous warnings, often based on videos of violations sent to enforcement authorities. Retail facilities have also been cited for employees failing to wear masks. In addition, the state has issued dozens of citations for violations of its travel order.

Maine

Noncompliance with any of the governor’s COVID-19-related executive orders can be a Class E crime punishable by up to six months in jail and a $1,000 fine for individuals and up to $10,000 for businesses. On December 16, Maine’s attorney general and Department of Health and Human Services updated its joint guidance regarding enforcement, particularly with respect to mask wearing, and potential consequences of noncompliance.

Of note is that individuals can be charged criminally for not wearing a face covering in a public setting after being warned by a law enforcement officer to do so. The guidance further notes that establishments that do not enforce orders requiring face coverings may also be subject to enforcement actions, including fines and liquor license suspension for restaurants. Order 19-A requires owners and operators of indoor public settings to enforce the mask mandate. Employees have the right to contact local law enforcement if a customer refuses to comply, and that customer can be considered a trespasser.

Portland has been using some grant money from a COVID-19-related public health program for health inspectors and code enforcement officers to follow up on complaints submitted to the city. Generally, the first citation is a warning, and if the problem is not corrected or more citations are issued, the business risks suspension of its operating license. Across the state, more than 48 businesses have been cited for violations, and 10 of those have had their licenses temporarily suspended. Most of the citations issued have been for mask violations in restaurants and other places offering seated food service. In one case, a repeat offender had its license suspended and was fined tens of thousands of dollars. 

Massachusetts

In Massachusetts, violators of COVID-19-related orders and sector guidance may be subject to fines, injunctions, loss of business license, or other penalties as appropriate. Localities also have the authority to engage in stricter enforcement than the state if they choose. The Alcoholic Beverages Control Commission conducts enforcement to ensure that restaurants and other licensed establishments comply with safety guidelines to prevent dangerous behaviors known to increase the spread of the virus. In addition to state and municipal police, the Department of Public Health and local boards of health can enforce fines of up to $500 per violation of the gathering limit (or $500 per person over a capacity limit) per Order 54. Failure to comply with the Commonwealth’s mask requirement risks a fine of up to $300 per violation and $500 per day for violations of the travel order.

From May through December 2020, complaints had been filed against over 1,000 companies and gathering places; the businesses receiving most complaints were grocery or home improvement stores, restaurants, and gyms and fitness facilities. A single restaurant received 20 complaints across multiple locations, including instances of employees being required to work despite having COVID-19 symptoms and not being told when an employee has tested positive. In addition to fines, venues have had licenses suspended for hosting events that violate the orders.

With the upcoming holidays in mind, state officials created a noncompliance hotline for those who observe gatherings above the current limit of 10 people in a single house. Although police are not actively seeking out large gatherings, they will respond to complaints if deemed necessary, and in addition to shutting down gatherings, can impose fines.

New Hampshire

Enforcement for compliance with New Hampshire’s COVID-19-related orders and regulations is outlined in Order 65. Under that order, violations can lead to misdemeanor criminal charges and are subject to injunctive action by the state. Businesses, organizations, and individuals who recklessly violate any order or regulation will be subject to a civil penalty of up to $1,000 per violation and for each day that the violation continues.These civil penalties may be imposed for failure to cooperate in an investigation of a potential violation, failure to cease operations upon notification by the Department of Public Health, and failure to comply with DPH instructions after notification of a positive COVID-19 test result. Failure to comply with an order issued by DPH can result in a fine of $2,000 per day.

Violation and enforcement notices, including fines, have been issued to a number of businesses, mostly restaurants, although those that were fined previously were issued warnings. Violations include failing to adhere to the rules regarding distancing or holding events indoors, as well as employees failing to wear masks. Sports leagues have also been fined for holding events that include out-of-state participants.

Rhode Island

In Rhode Island, the Department of Health is authorized to assess civil penalties for violations of COVID-19-related orders, in addition to other penalties permitted by law. The state also has a task force, a collaboration between DOH and the Rhode Island Department of Business Regulation, responsible for inspection and enforcement of the emergency regulations, although both the task force and the state police may issue citations and fines. The maximum civil penalty is $500 per violation, with each day’s failure constituting a separate violation.

Assessment of penalties varies depending on the type and severity of the violation. Smaller violations or an occasional lapse will result in a warning on the first violation, with a compliance order or fine for a subsequent violation. However, blatant disregard for an order or regulation may result in an immediate order of compliance or fine on the first violation; after a second violation, the business can be fined or ordered to close until the issues are remedied. Additionally, hosts of events violating the restrictions on gathering size can be fined $500 plus $100 per person over the allowed limit. Attendees can be fined $100 for attending a noncompliant social gathering.

Several bars were recently fined and temporarily closed over violations of statewide COVID-19 restrictions. The violations varied from violating the curfew, allowing customers to mingle and be served at the bar, and for noncompliance with the face covering requirement.  A number of gyms and fitness facilities were fined for operating during the state’s recent reopening pause and ordered to close. A list of all businesses subject to compliance orders is maintained here.

Vermont

There are currently no formal enforcement mechanisms in place for Vermont’s orders and regulations related to COVID-19. Instead, the state is relying on education and pressure from residents, but the governor has not ruled out including enforcement measures in future orders if necessary. Law enforcement will first try to gain voluntary compliance, but those refusing may be reported to the Department of Public Safety. The DPS has authority to inspect business premises and records to ensure compliance with the governor’s orders. To ensure compliance with its travel order, the state’s health commissioner has said that his team will conduct random compliance assessments at locations known to attract out-of-state visitors

The state’s attorney general has said that his office may bring actions for violations of COVID-19-related orders if the conduct warrants it, although criminal enforcement will be used only as a last resort or under extraordinary circumstances. Such enforcement may include a fine of up to $500 and/or imprisonment of no longer than six months. 

Local municipal and law enforcement officials may independently enforce the orders as civil violations of municipal ordinances or regulations, if relevant ordinances or regulations exist in those localities, as long as they are not in conflict with orders or guidance from the state or governor. For example, in Burlington, a local regulation subjects people, businesses, and organizations that intentionally disobey COVID-19-based requirements to civil penalties of fines between $100 and $500 for the first offense, with a second offense fined at least $250, and any subsequent offenses at least $500.

recent addendum to the original Stay Safe order states specifically that failure to comply with contact tracing efforts may result in referral to the attorney general for enforcement. Otherwise, statewide, civil enforcement may include injunctive relief to compel compliance, fines of up to $1,000 each day the violation continues, and other municipal penalties.

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 358
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About this Author

Kathleen Hamann White Collar Attorney Pierce Atwood Washington, DC
Partner

Kathleen Hamann is an internationally recognized authority in the field of white collar enforcement and compliance matters. Drawing on her nearly 20 years of service to the federal government, in roles at the US Department of Justice and Department of State, Kathleen helps clients navigate the complexities of U.S. and transnational criminal liability and multijurisdictional government investigations.

Since returning to private practice, Kathleen has represented clients in a number of transnational matters, conducting global risk assessments, designing compliance programs, and...

202-530-6409
Sarah Remes Employment Lawyer Pierce Atwood Law Firm
Associate

Sarah Remes represents clients in complex commercial litigation, including class actions, employment-related disputes, and internal investigations.

Prior to joining Pierce Atwood, Sarah was an associate at a litigation boutique in Boston. During law school, Sarah was a judicial intern for Massachusetts Appeals Court Justice Judd. J. Carhart. She was also the articles editor for the Journal of Business & Intellectual Property Law and a member of the Pro Bono Honor Society. Prior to law school, Sarah worked in risk management and internal audit at a Boston-area bank.

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