The Journal Gazette
Thursday, January 28, 2021 1:00 am

General Assembly

Bill could keep businesses open

Would operate while appealing health official's order

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – A local business could easily block an emergency health enforcement action under a bill passed 9-1 on Wednesday by the Senate Public Policy Committee.

Senate Bill 5 would allow businesses to file an appeal over an action – such as a fine or closure order – and stay open while a local authority considers it.

For most of the state, the appeal would go before the county commissioners, but in a few areas the appeal would go to the city council. If no action is taken on the appeal, the local health officer's order would essentially be overruled. Or the board could quickly back up the decision with a public vote.

“This is about creating a check and balance for an unelected official,” said Sen. Chris Garten, R-Charlestown, the author of the bill.

Garten said an appointed board hires a health commissioner and “nobody should have unchecked power.”

Right now, the only option businesses have is to file a lawsuit.

Garten said the vast majority of health officers in the state have done great work but the pandemic has highlighted a process lacking immediate due process.

The biggest example in northeast Indiana was the closure of Yergy's State BBQ in Wells County for not following rules such as wearing masks and socially distancing patrons. The restaurant has filed a lawsuit but remains closed while it works through the system.

If this bill was in place, the owners could have asked the Wells County commissioners to overturn the order and would have remained open in the meantime.

Sen. Karen Tallian, D-Ogden Dunes, said allowing businesses to stay open could be disastrous in other emergencies, noting the bill would apply to more than just a pandemic – such as a cholera outbreak, tornado or flooding.

Patrick Tamm, president of the Indiana Restaurant & Lodging Association, said other existing laws and ordinances would govern in those situations – such as health and fire codes. Emergency orders wouldn't be necessary.

Dr. Roland Walker, Gary's health commissioner, said during an emergency the health department “needs to be able to act quickly to protect the public. ... This bill will cost lives.”

But those on the committee told anecdotal stories of a florist being shut down while Walmart could sell flowers.

The Indiana Association of County Commissioners supported the bill and even suggested an amendment. They would like to be able to replace members of the county health board prior to the completion of their term.

Several GOP members of the committee said they would go even further with the bill. But Sen. Jean Breaux, D-Indianapolis, said the legislature should support those trying to act in an emergency for the best interest of the public.

“It definitely undermines the ability of the public health department to do their jobs,” she said.

The bill now moves to the full Senate.

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