SPEARFISH — At a special session Wednesday afternoon, the Spearfish City Council voted to table any further discussion about enforcing distancing requirements for businesses, effectively opening up Spearfish for business with no restrictions.
“Please do not become complacent, we are going to see our numbers go up ... be very careful and protect you and yours,” said Mayor Dana Boke.
On March 25, the council approved the first reading of ordinance, 1314, to restrict some business operations. Restrictions included restaurants and bars to cease selling for on-site consumption of food and beverages although they could continue curbside and delivery service. The ordinance also closed rec centers, movie theaters, casinos, and bowling alleys.
The second reading of the ordinance was approved March 31. Thus, upon publication of the ordinance in the city’s legal newspaper, the Black Hills Pioneer, the ordinance becomes law.
Then, on April 23, the city passed the first reading of ordinance 1316 which would have allowed those businesses affected by the previous ordinance to reopen and allow on-site consumption. The new ordinance used Gov. Kristi Noem’s executive order 2020-12 as a reference tool. However, since Noem rescinded that executive order Tuesday afternoon in her “Back to Normal” plan, the city’s ability to enforce social distancing restrictions was called into question by some council members.
This prompted the city to draft a third version of ordinance 1316. While state law does permit changes in ordnances to be made between the first and second readings, the third version changed enough of the ordinance that a second, second reading, or third reading, would be required for the ordinance to pass.
In her “Back to Normal” plan, Noem pulls back on state requirements concerning social distancing and gatherings, instead adopting a more passive system of guidelines, encouraging enclosed retail businesses that promote public gatherings “to resume operations in a manner that allows for reasonable physical distancing, good hygiene, and appropriate sanitation;” and to, “consider restricting occupancy and continue innovating in this uncertain environment,” rather than requiring them to do so. It also encourages local governments to “consider current and future actions in light of these guidelines.”
Noem’s new plan seemed to cause confusion among the council, as it applied to the ordinance being discussed.
“The ordinance, right now, with this ‘Back to Normal’, I mean, it’s toothless right now as it is, is that accurate,” asked Councilman Rob Herrmann. “I mean we’re not really enforcing anything anymore.”
Spearfish City Attorney Ashley McDonald explained to council that the city does still have the authority to set its own enforceable laws, which would have been the case in ordinance 1316.
“The ‘Back to Normal’ plan by the governor doesn’t have the meat in it that 2020-12 did in the specifics,” McDonald said. “It puts (responsibility) back in the hands of individuals and individual business owners. We still have the statutes that are cited at the beginning of the ordinance (SDCL 9-29-1, which states every municipality shall have power to exercise jurisdiction for all authorized purposes over all territory within the corporate limits and over any public ground or park belonging to the municipality, whether within or without the corporate limits, and in and over all places, except within the corporate limits of another municipality, within one mile of the corporate limits or of any public ground or park belonging to the municipality outside the corporate limits, for the purpose of promoting the health, safety, morals, and general welfare of the community, and of enforcing its ordinances and resolutions relating thereto; and 9-32-1, which states every municipality shall have power to do what may be necessary or expedient for the promotion of health or the suppression of disease.) that gives cities the authority to enforce certain provisions and enact ordinances to promote the health, safety, and welfare of the people of the town,” she added. “The executive order of the ‘Back to Normal’ plan does not create any specific direction.”
Hermann said he was disappointed in the actions of the governor for removing her directives and a lack of guidance from the state.
“If the governor wants to leave this to the community, my attitude is that this now becomes a public service announcement for the benefit of Spearfish to implore (businesses) … to please follow the city’s guidance for their roadmap and we do the right thing because it’s what’s right and scrap the ordinance because it doesn’t have any teeth.”
If enacted, any violation of the ordinance would be subject to the general penalty provision in section 1-14 of the Spearfish City Ordinances, which states, “Whenever in this Code or in any ordinance of the city an act is prohibited or is made or declared to be unlawful or an offense or a misdemeanor or wherever in such Code or ordinance the doing of any act is required or the failure to do any act is declared unlawful and no specific penalty is provided therefor, any person who shall be convicted of any such violation shall be fined not more than five hundred dollars ($500.00). Each day any violation of this Code or other ordinance continues shall constitute a separate offense.”
Despite having the authority to set and enforce its own guidelines through the ordinance, the city council opted instead to enact resolution 2020-09, which encourages businesses and individuals to follow the city’s recommended best practices, but does not allow for any legal involvement in enforcing them.
“If we adopt resolution 2020-09, its more or less setting guidelines for businesses but without any ability to enforce via fines or other avenues, correct,” asked Councilman Darick Eisenbraun.
“That is correct,” City Administrator Mike Harmon answered. “It would not be binding in terms of enforcement.”
Eisenbraun motioned to adopt the resolution, and extend it to July 31, Councilman Larry Klarenbeek seconded. Councilman Dan Hodgs agreed with the motion.
“I like the idea (of adopting the resolution) just because it does give guidelines to the businesses and I know we don’t have a lot of teeth inside of it and I don’t know if we’ll necessarily need that, trusting that the business owners will do their due diligence and take care of their employees and customers,” Hodgs said. “I like the guidelines that it sets, it just gives the businesses one more tool to look at.”
The council voted unanimously to enact resolution 2020-09, which provides further guidance and best practices for business owners going forward, but does not require any of them to be enforced. The resolution will last through July 31, unless the council chooses to repeal it at an earlier date.
Citizens are urged to continue practicing all recommended CDC guidelines everywhere, including their necessary trips to businesses, outside in public open spaces, at home, etc. These recommendations include:
• Avoid groups of 10 or more people;
• Practice social distancing, keeping at least 6 feet away from others;
• Avoid non-essential travel;
• Avoid close contact with people who are sick.
• Avoid touching your eyes, nose, and mouth.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
• Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.
• Clean and disinfect frequently-touched objects and surfaces using a regular household cleaning spray or wipes.
• Cover your mouth and nose with a cloth face cover when around others in public.
The city has also created a “Recommended Best Practices When Re-Opening Post-COVID-19-Related Closures” digital guidebook, as well as a “Roadmap for Re-Opening the City of Spearfish,” to assist business owners and citizens going forward, which can be found on the city’s webpage by clicking the COVID-19 Information button near the top.
The city has launched the webpage, www.cityofspearfish.com/723/COVID-19, to provide resources to citizens, and on that site are links to those seeking reemployment assistance, small business disaster loans, tax relief, etc. People in need of assistance or looking to assist those in need may also fill out forms to get connected to various resources, organizations, agencies, etc.
The city’s public facilities including City Hall, the Spearfish Recreation Center, Grace Balloch Memorial Library, Hudson Hall, etc., are closed to the public until further notice. Services remain available by calling the appropriate departments.
To read all of today's stories, Click here or call 642-2761 to subscribe to our e-edition or home delivery.