Enforcement responsibilities murky as reopening continues during pandemic

“For nonconformity the world whips you with its displeasure. And therefore a man must know how to estimate a sour face.” — Ralph Waldo Emerson

There are a lot of sour faces right now.

The cause, as if the coronavirus pandemic wasn't enough, is partly due to businesses who are perceived as not conforming to the restart protocols issued by North Dakota Gov. Doug Burgum and Minnesota Gov. Tim Walz.

While government officials and local law enforcement say they won’t ignore any complaints, just who is responsible for enforcement, and what that looks like in practice, is far from clear.

Concern from the citizenry, who have called into public and environmental health departments and police stations on both sides of the river, and who have resorted to social media platforms to raise awareness, focus to some degree on social distancing and the wearing of face masks.

While both states’ executive orders carry the possibility of fines, closure, and even jail time, for disobedience, some businesses aren’t obligated to follow standard practices, which in both states are being called “voluntary.”

Big box chain retailer Menards, which had been the subject of several concerns expressed to The Forum, as well as in a recent discussion within a popular Moorhead Facebook group , is a case in point.

Burgum’s communications director, Mike Nowatzki, pointed out that “big box stores were not closed by the previous executive order and are ‘strongly encouraged’ to follow the ‘Standards for all Industries’ under the amended executive order.”

Which means Menards is free to instigate mask-wearing policies as it sees fit, which it has, but not in all stores.

Jeff Abbott, Menard, Inc. spokesperson, clarified.

“To protect everyone from the virus, we require that all of our employees wear masks in all stores,” Abbott said. “We request that our customers in Fargo and Moorhead wear masks if at all possible.”

A list of mask-required locations can be found at on the Menards website . Social distancing signs, as well as floor tape, are also in evidence at the store.

Abbott said that if anyone sees their location’s policies being unenforced, they should speak to that store’s management.

As a rule, local law enforcement is the catch-all phrase used in both states for most enforcement mechanisms.

“The governor has asked that enforcement of his orders be focused primarily on education, though it would generally be the responsibility of local law enforcement to make that decision on a case by case basis,” Teddy Tschann, Walz’s press secretary, said.

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Nowatzki pointed to executive order 2020-06.4, page 3 number 4, which says, “All local, county and state law enforcement officers are authorized and directed to enforce the provisions of this Executive Order.”
In some cases, that means the police.

“We are not currently ‘patrolling for violations’ but encourage our staff to stop in if something looks suspicious, such as a large amount of cars in a lot,” said Moorhead Police Capt. Deric Swenson. “We try to work with our businesses to educate them with the changes in law from the governor’s orders. We would look at violations being enforced if there [were] blatant acts ignoring or violating the orders. All sustained investigations would have a report for review of charges and for documentation for review during license, such as liquor license, renewals.”

They’ve had a few complaints, Swenson said, but nothing that resulted in charges.

In Fargo, complaints have been few, at least into the first week of May, and none surrounding businesses.

“Any call for service that is generated will be checked out by a patrol officer,” Jessica Schindeldecker, crime prevention and public information officer at the Fargo Police Department, said. “The officer will chat with anyone who is in violation of the governor’s executive order and move on. Our goal is not to file reports with the state’s attorney’s office. We are not doing special patrols or enforcement shifts.”

Other times, it might mean public and environmental health departments, but in those cases, as officials pointed out, the agency has to have regulatory authority over the business in question.

That isn’t the case with stores like Menards.

Chris Ohman, with the Environmental Health Department at Fargo Cass Public Health, said even though the department is stretched thin, staff won’t ignore complaints.

“We can’t be out at every facility, at every hour of the day,” Ohman said. “We’re really relying heavily on being informed if it’s not happening.”

So far, he said, there have been a few complaints, but none requiring anything more than “education.”

The same is true in Clay County, where Public Health Administrator Kathy McKay said complaints won’t be ignored, and she would rely on state partnerships to resolve any potential issues. The role of public health is to provide information to businesses who need help understanding how to comply with recommendations.

“We do not do any of the enforcement of that,” McKay said.

As it stands, public health hasn’t fielded any concerns, she said, but environmental health has had a few, according to its director Kent Severson. They’ve all been followed up on, he said, and none resulted in escalated action of any kind.

He said agencies are “feeling their way" through unprecedented times.

“We definitely need a degree of compassion with some of these things,” Severson said, “and talk them out.”