Marshall Co. Health Board Clarifies Enforcement Of State-Mandated Restaurant Closures

Nov 24, 2020

Dr. Joe Ellis chairs a special-called meeting of the Marshall County Board of Health on November 24, 2020.
Credit Screenshot by Dalton York / Marshall County Board of Health

An executive order signed last week by Kentucky Governor Andy Beshear closing in-person dining at restaurants and bars will be enforced by local health departments. This follows the Marshall County Health Department seeking clarity on which agencies are in charge of enforcing the order.

The state issued guidance to departments after the mechanics of enforcement were originally left unclear. Some Marshall County restaurants considered staying open in defiance of Beshear’s mandate, but new guidance from Frankfort indicates the county health department has the authority to revoke the licenses of businesses that choose not to comply. State law gives health departments the authority to revoke licenses for restaurants and bars if their operation constitutes a “public health hazard.” Current interpretation of the statute by the state government considers in-person dining to be a hazard with the ongoing COVID-19 pandemic.

Marshall County Attorney Jason Darnall said local health departments are “agents of the state” when it comes to enforcement of rules and regulations.

“Even if this board voted tonight not to take any action and just to completely turn a blind eye on the orders, the state still has those officers on the ground who can come in and enforce it,” Darnall said. “The state actually has the inherent authority to suspend those licenses.”

Marshall County Health Department Director Billy Pitts outlined the enforcement process for businesses presumed to be in violation of the order.  The first step is a site visit to verify the validity of a report made against an establishment. Department officials would then explain to the business owner the exact nature of their noncompliance. If no action is taken to resolve the issue, the department may then issue enforcement orders and eventually revoke the operating license of the noncompliant establishment.

Although the department holds responsibility for enforcement action, Darnall said the county lacks the manpower to conduct robust field operations in support of the order.

“We don't have the manpower or the resources to have roving patrols throughout the county,” Darnall said.

Although the order closes all in-person dining, outdoor dining is still permitted. Some restaurants are using tents to provide outdoor dining services. Marshall County Judge/Executive Kevin Neal recently signed an executive order providing county resources including tents to businesses seeking assistance. Neal said ten businesses have requested tents so far and the county could begin distributing the tents as soon as Wednesday.

Pitts said any outdoor dining tent must have at least two exterior walls open, and fully-enclosed tents will be considered an indoor dining facility which violates the provisions of the executive order.