North Carolina Gov. Roy Cooper strongly encouraged local officials to establish civil penalties for people who violate his executive orders related to the COVID-19 pandemic.
The state is seeing record highs in cases, percentage of positive tests, and hospitalizations, according to a letter from Cooper, Secretary of Health and Human Services Dr. Mandy Cohen, and Public Safety Director Erik Hooks.
“This pandemic is threatening to overwhelm the capacity of our hospitals and health care workers, and we all want people seeking medical care to have a hospital or ICU bed if they need it for COVID-19, a hear attach or any other ailment,” the three officials said in their letter.
“Too may North Carolinians are getting sick and dying,” they said. “We need your strong action and leadership.”
Cooper, Cohen and Hooks sent the letter to local elected officials on Friday, imploring them to help slow the spread of COVID-19 in their communities by considering additional enforcement measures.
“Now more than ever we need help with enforcement from our local partners to fight this raging pandemic,” said Governor Cooper. “Taking steps now to protect our communities by enforcing safety precautions will help reduce transmission of the virus and save lives.”
A recent advisory opinion from the North Carolina Department of Justice concludes that local governments may unquestionably enforce local ordinances that establish civil penalties for violations of the Governor’s COVID-19 Executive Orders.
“We are on a dangerous course,” said Secretary Cohen said. “Everyone — our counties and municipalities, businesses, community organizations, and every North Carolinian — must act to save lives and make sure our hospitals can care for those who need them.”
“Good public health is vitally important to maintaining a safe and secure environment,” said Secretary Hooks. “Public safety professionals at all levels of government are essential to supporting the public health sector of our state and nation’s critical infrastructure.”
The Craven County Board of Commissioners received the letter on Monday, Dec. 14, 2020, after they had already adorned their work session, said Spokesperson Amber Parker. The Board of Commissioners is in the process of reviewing the letter and any action, if taken, would take place at a later time, she said.
Craven County Sheriff Chip Hughes said in published accounts that enforcing a 10 p.m. stay-at-home order county wide is not feasible, and his department would not make it a priority. New Bern Police said in published accounts that they would use public education as a means to encourage voluntary compliance. More here.
Blake Thomas, deputy general counsel to the N.C. Attorney General’s Office, opined that Cooper is within his powers as governor.
“A common-law doctrine prohibits local ordinances that cover exactly the same conduct as state statutes. You have asked whether this doctrine prevents local governments from using civil penalties as a tool for flexible enforcement of the Governor’s COVID-19 orders.
“… I conclude that local governments may enforce local ordinances that establish civil penalties for violations of COVID-19 executive orders. The Emergency Management Act (‘EMA’) expressly states that it supplements, rather than restricts, the ordinary power of local governments to make ordinances. The express and specific words of the EMA indicate that the common-law preemption doctrine does not apply to local emergency ordinances.
“Moreover, even if the common-law preemption doctrine were to apply, cities and counties may unquestionably enforce ordinances that are more restrictive than state law. Thus, local governments concerned about the validity of ordinances that simply mirror the Governor’s orders can enact ordinances that are more restrictive than the Governor’s orders, and enforce them either civilly or criminally.”