Kutztown Borough Council voted Tuesday night, Sept. 15, to delay part of their aggressive new ordinance intended to slow the rise in COVID-19 cases in the borough, which are mainly among Kutztown University students.
That ordinance was approved by council’s 4-2 vote Friday, Sept. 11, and required people to wear face coverings, limited the size of gatherings and imposed stiff fines on homeowners, renters and businesses that violate its provisions.
Some residents criticized the ordinance as overreaching and an invasion of privacy.
Council on Sept. 15 voted 6-0 to delay enforcing the section of the ordinance that would limit home gatherings to 10 or fewer people. It decision followed a federal judge’s ruling Monday that Gov. Tom Wolf overstepped his authority with pandemic restrictions of many types.
Borough solicitor Keith Mooney said Sept. 11 that restrictions on home gatherings did not apply to family members, only unrelated people. It allowed residents to apply for an exception, but even if granted it would still limit the gathering to 25 people, provided a COVID-19 mitigation plan is submitted with the application.
Despite the Sept. 15 action the rest of the ordinance, including masking and distancing requirements, can still be enforced, council said.
Kutztown is believed to be the first Berks County municipality to enact an ordinance in response to the COVID-19 crisis.
The college is listing 140 student cases as off campus. The school has said nearly all of them live in the borough. Overall, KU has 248 cases, including three employees.
The Sept. 15 action was recommended by Mooney in response to a ruling by U.S. District Judge William Stickman IV that Wolf's pandemic restrictions requiring people to stay at home, placing size limits on gatherings and ordering "non-life-sustaining" businesses to shut down are unconstitutional.
Stickman, who was appointed by President Donald Trump, sided with plaintiffs that included hair salons, drive-in movie theaters, a farmer's market vendor, a horse trainer and several Republican officeholders in their lawsuit against Wolf, a Democrat, and his health secretary.
Stickman said that while the governor's efforts to slow the spread of the coronavirus "were undertaken with the good intention of addressing a public health emergency," those policies have been overreaching, arbitrary and violated citizens' constitutional rights.
Wolf said he intends to seek a stay and appeal the ruling.
Therefore Kutztown council decided to hold off on enforcing its new rule about the size of gatherings at least until that case is resolved, said Borough Manager Gabriel Khalife.
“They thought it was more prudent to put a delay on it,” Khalife said.
But the borough is still encouraging people to follow CDC and state Department of Health recommendations regarding hygiene, social distancing and large gatherings to prevent the virus from spreading, Khalife said.
Kutztown Mayor Jim Schlegel said that if council’s vote on the ordinance would have been split 3-3 and he’d have had to cast the tie-breaking vote, he doesn’t know which way he’d have gone.
But he agreed with the Sept. 15 council decision because he was concerned that someone cited for violating the rule on gatherings could sue the borough over its legality.
Schlegel still urges people to be smart during the pandemic.
“Follow the science,” he said. “This is a deadly virus. Why can’t people just practice common sense?”
For example, he favors distancing when possible and thinks everyone should wear masks in public.
“It’s a mostly airborne virus, so if I wear a mask, it’s keeping me from giving you my germs,” he said.
Matt Santos, a university spokesman, attributed the spike in students testing positive for the coronavirus to off-campus partying the last weekend of August.
Those parties concerned Schlegel, especially since so many KU students live in the borough or visit businesses there.
“They may not be COVID-19 parties like we’re hearing about across the country, but they might as well be,” he said.
Santos on Sept. 16 said, “With approximately 500 KU students living in the borough, and another 3,200 living nearby on campus or in the township, the ordinance is intended to support the health and wellness of all residents and visitors to the borough, including KU students.
“The university has supported the borough in its efforts, and will continue to promote the wearing of masks and social distancing in the borough (on-campus, and everywhere), while the gathering limitation is reviewed.”
The six-page ordinance reads that the borough has seen a “sharp and aggressive spread” of COVID-19, and states the only method presently available to slow the rate of infection is to limit exposure.
The ordinance codifies state Department of Health measures already in place and became effective immediately. It will remain in effect until emergency declarations by the state and the borough are lifted on Jan. 31 or earlier.
Schlegel said it’s important for residents to understand the rules aren’t permanent.
“The whole idea is to keep people safe and healthy, not to take their lives away,” he said.
During public discussion Sept. 11, the ordinance came under repeated questioning as to whether it is advisable, enforceable or legal. Several people appealed to council to postpone a decision and make amendments based on issues raised by opponents.
Greg Kaufinger told council that he has a petition signed by more than 200 people opposing the ordinance.
But some supported the ordinance as a fix to a short-term problem, including Lisa Ladd-Kidder.
“This thing is real, this is serious,” she said of the virus. “It affects not only students. Everyone is capable of spreading it.”
In calling for a vote on the ordinance, council President Kevin Snyder expressed serious reservations about government overreach.
“But as elected officials we have an obligation to protect the health, safety and welfare of our residents,” said Snyder, who voted for the ordinance. “Though it's not perfect, at least it says that Kutztown is serious about stopping the spread of this virus.”
He added, “We just can’t sit back and wait for it to get worse.”
The preamble to the ordinance says COVID-19 poses a risk of incapacitation and death. Its measures are intended to reduce infection rates, minimize risk to public health and ease pressure on medical facilities.
The ordinance, which lists exceptions to its provisions, is available on the borough website, www.kutztownboro.org.