Whitefish mulls tighter COVID-19 restrictions

The Whitefish City Council will hold a virtual public hearing tonight to consider tightening COVID-19 community measures and re-establishing some of the guidelines in the governor’s Phase 1 directive issued in April.

The hearing comes on the heels of the city’s emergency restrictions for Halloween weekend that capped gatherings at 10 people and put more restrictions on bars and restaurants.

In a report to the council from City Manager Dana Smith and City Attorney Angela Jacobs, the officials note that COVID cases are surging “to alarming levels,” but the Flathead City-County Board of Health “declined to enact any additional restrictions to stop community spread.” At the council’s request, the officials provided additional information about the city’s ability to enact more permanent restrictions.

The report noted the governor’s April 22 directive provided that “all inconsistent emergency county health ordinances are preempted by this directive, but only to the extent they are less restrictive.”

“Unfortunately, as stated above, the county refuses to enact any county health ordinance to address the spread of COVID-19, let alone one as restrictive or more restrictive than the Governor’s directive,” Smith and Jacobs’ report noted. “However, under [state law], if the city were to enact an ordinance more restrictive than the governor’s directive in the interest of public health and safety, it would likely not be deemed inconsistent with state regulation.”

The report pointed out the powers for a charter city such as Whitefish “are to be liberally construed by the court, with every reasonable doubt as to the existence of a such power being resolved in favor of the existence of that power or authority.”

Whitefish could also consider hiring a COVID education liaison who could help enforce the governor’s directives in Whitefish.

“However, if we have more restrictive requirements in place, those will fall to local enforcement by the city, the staff report noted. “As with all public health measures currently in place, enforcement is based on citizen complaints with specific penalties for non-compliance.” The city does have a potential way to enforce COVID-19 restrictions through the Department of Revenue, which issues liquor licenses. Under state law, each establishment with a liquor license must comply with all city ordinances related to alcoholic beverages. If an establishment fails to do so, the department can take actions such as suspending the license, revoking the license, or fining the establishment up to $1,500, according to the staff report.

“As such, the city could report violations of an ordinance enacting COVID-19 restrictions to the Department of Revenue for bars and restaurants with a liquor license,” the report stated. “Should the City Council choose to implement additional restrictions, we may need to hire a position to assist in enforcement by responding to complaints. This would still not provide daily monitoring of all businesses, but rather would present a similar approach to our face-covering ordinance.”

A complaint process would be established, so that “upon the need for a third civil infraction, the City Manager may revoke a business license.”

The staff report acknowledged the impacts tighter restrictions would have on Whitefish businesses, particularly bars and restaurants.

“It is hard to decipher what impacts increasing capacity to 75% (Phase II) from 50% (Phase I) had on sales since that occurred as the busier months approached and the weather changed allowing for more outdoor seating. While many businesses are struggling, the state did release various grants to support our local Montana businesses,” the report noted.

To attend the online meeting, and provide live comment via WebEx on your computer, tablet or smartphone, residents and other attendees should go to the following web address: https://cityofwhitefish.webex.com/cityofwhitefish/j.php?MTID=mda526b156f5a6a6dd91b45818926a1ee

Specific information about how to join the meeting is on the city’s website. It begins at 7:10 p.m.

Written public comments may be emailed to the City Clerk, Michelle Howke at mhowke@cityofwhitefish.org. or deliver by 4 p.m. today at City Hall in the Utility Drop Box. Written comments should include name, address, should be short and concise, courteous and polite. All written comments received by 4 p.m. will be provided to the City Council and appended to the packet following the meeting.