Mercer gym defies shutdown order; DA withdraws citations
About a dozen police officers — one with a K-9 dog — arrived in marked vehicles, some taking positions at each corner outside a small Mercer County fitness center.
Joseph A. Joseph watched the scene unfold May 6 at a window inside Prep Training & Fitness Systems in Hermitage, which he owns. Was a criminal on the loose, he wondered. His brother is a police officer and his father is a municipal solicitor, both just 3 miles away in Sharpsville, where he grew up.
The ensuing confrontation spotlights the mounting pushback against Gov. Tom Wolf’s executive order March 19 that closed nonessential businesses, a move public health officials say is needed to stop the spread of COVID-19. At the same time, the public health directive is creating enforcement challenges that haven’t arisen since the start of the last century.
The authorities were looking for Mr. Joseph, the man watching in surprise from a window as Mercer County District Attorney Peter C. Acker and Hermitage Police Chief
Eric Jewell knocked at the door.
Mr. Joseph said the authorities gave him two choices: He could close his business, or he would be issued two citations every day in May. The 32-year-old business owner said he had little choice but to stay open in violation of Mr. Wolf’s order.
Critics of the governor’s closure order have been growing louder in recent weeks, with a lawsuit filed May 8 in U.S. District Court for the Western District of Pennsylvania by four Western Pennsylvania
counties, lawmakers and others, claiming the shutdown was “arbitrary and capricious.” A rally to protest the closure of nonessential businesses is planned Friday in Harrisburg, which would be the second of its kind in less than a month.
On Thursday, Mr. Wolf said defying the closure order puts people at risk of becoming infected. “How can a business owner justify putting customers in harm’s way?” he said during a media briefing.
District attorneys in Beaver, Greene and other counties have taken another view, questioning the legality or usefulness of prosecuting businesses that violate the government’s shutdown order.
The Mercer County district attorney withdrew the fitness center citations from the local magistrate’s office Monday, saying in a prepared statement that he had “other, far more important cases to work on.”
Meanwhile, state Insurance Commissioner Jessica Altman issued a warning Monday to businesses, saying that opening in defiance of the governor’s order might open them up to uncovered claims. But insurance executives say that isn’t clear at this point either.
For his part, Mr. Joseph, an Army veteran and fulltime student at Clarion University, said he was up against a wall financially.
“I invested everything I had in the business,” said Mr. Joseph, who has no employees. “I took a big risk. I started getting shut-off notices from my utility companies.”
In February 2017, he had leased a building next to a paint and decorating store along a sleepy commercial strip in Hermitage, population 15,500 and an hour and a half drive from Pittsburgh. For the next six months, his home was the building as he worked to bring it up to code for a fitness center, spending nights in a sleeping bag and showering at friends’ houses.
He opened to the public as a 24-hour facility in August 2017.
And when Mr. Wolf ordered the closure of nonessential businesses, Mr. Joseph said he willingly complied, saying he wanted to help flatten the escalating rise in the number of cases.
But it wasn’t long before he started running out of money: The fitness center’s internet service was suspended because of nonpayment and Penn Power sent a termination notice, he said.
“I just didn’t have a choice” whether to reopen, he said.
By Monday, the Mercer County district attorney had thought better of his decision to prosecute and Hermitage officials were referring questions to the district attorney.
“Mr. Joseph appears to be the only business in the county that was requested to close and refused to do so,” Mr. Acker said in a statement. “The withdrawal of the citations should in no way be interpreted as a conclusion that Mr. Joseph was not in violation; he was and still is.”
Yet Mr. Acker said statutes underlying the citations were “poorly drafted” and the “range of fines are way too low and obviously lack meaningful sanctions.”
Fines for the citations Mr. Joseph received for violation of the Administrative Code of 1929 and the Disease Prevention and Control Law of 1955 range between $10 and $300. Mercer was among the counties May 8 that turned to “yellow” from “red,” easing some restrictions, but no matter: Barbershops, hair salons and fitness centers are among the businesses that are still prohibited from opening.
Although Mr. Joseph seems to be in “clear violation of the orders of the governor and secretary of health,” Mr. Acker said his office handles about 3,000 criminal and juvenile cases yearly, including homicides and hundreds of felonies, making the prosecution of the summary offenses against Mr. Joseph — the legal equivalent of traffic tickets — hardly worth the cost.
Greene County District Attorney Dave Russo reached the same conclusion another way.
On Monday, he announced he would not prosecute businesses that open in defiance of the governor’s order because of the need to protect the local economy, already battered by low coal prices and closing mines.
“This decision was made to prevent businesses from being forced into bankruptcy or to close permanently,” he wrote in a statement.
Beaver County District Attorney David Lozier said he thought Mr. Wolf’s “definition of life-sustaining business was vague and unenforceable and therefore I do not intend to prosecute” defiant business owners. The Beaver County commissioners are backing his stance.
There’s another potential cost to defying the governor’s order: jeopardizing business insurance coverage, the state insurance commissioner said Monday.
“Businesses and residents rely on insurance coverage to protect them from liability, pay for covered losses and compensate those who may be injured or harmed,” Ms.
Altman said in a prepared release. “Any actions that could potentially create coverage gaps are the antithesis of the civil duty required of all residents during these times of emergency.”
Insurance brokers were not so sure.
“All policies carry illegal act exclusions,” said Brennan Hurley, president of Oakland-based Hurley Insurance Brokers.
That means engaging in illegal activities could void a business’s property and casualty insurance policy, which typically covers property damage and bodily injury to customers as in the case of a fall. Ms. Altman also said operating a prohibited business during the shutdown could affect a “host of other essential coverages.”
But Mr. Hurley said denying an insurance claim based on the governor’s order might be a stretch.
“I’m having trouble believing that an insurance company, even in the court of public opinion — would they really want to deny that claim?”
B. Daniel Seltzer, principal at North Shore-based insurance broker Seubert & Associates Inc., said the term “criminal acts” is commonly found in property insurance policies as an exclusion for paying a claim and it’s defined as “dishonest, fraudulent or criminal acts by the insured or any of the insured’s associates.”
Whether defying Mr. Wolf’s shutdown order qualifies as a “criminal act” is a question better left to lawyers, Mr. Seltzer said.
“We’ve never had a situation like this, not in 100 years, unheard of,” he said. “It’s all new territory.”