LEGAL TOOLKIT FOR PENNSYLVANIA LOCAL HEALTH DEPARTMENTS. September 24, 2009

Transcription

1 LEGAL TOOLKIT FOR PENNSYLVANIA LOCAL HEALTH DEPARTMENTS September 24, 2009

2 Table of Contents PREFACE...i ACKNOWLEDGEMENTS...ii SECTION I: Introduction Police Powers...2 Remedies at Law...3 Equitable Remedies...3 SECTION II: Legal Forms Cover Sheet...6 Notice of Presentation with Affidavit of Service...8 Notice of Availability of Administrative Appeal...10 SECTION III: Public Health Nuisances Notice of Violation and Order to Abate...13 Motion for Preliminary Injunction Closure (Persistent Nuisance)...16 Brief in Support of Motion: Closure (Persistent Nuisance)...20 SECTION IV: Public Health Emergencies Notice of Public Health Nuisance/Emergency...28 Notice of Communicable Disease...30 Emergency Order to Close...32 Certification of Service...35 Motion for Emergency Preliminary Injunction: Closure...37 Brief in Support of Motion: Closure (Emergency)...42 Isolation/Treatment Orders...51 Motion for Mandatory Preliminary Injunction: Isolation/Treatment...55 Brief in Support of Motion: Isolation/Treatment...61 Quarantine Order...65 Motion for Preliminary Injunction: Quarantine...70 Brief in Support of Motion/Quarantine...75 SECTION V: Table of Authorities...83

3 PREFACE The University of Pittsburgh Center for Public Health Preparedness Law Program works to advance legal preparedness across the Commonwealth of Pennsylvania and the nation. The Center recognizes the vital role that local health departments and the legal system play in the maintenance of public health and safety. In the event of a public health emergency, the timely implementation of appropriate disease control measures will be imperative. To ensure that the judicary had ready access to the public health law information they would need in an emergency, the University of Pittsburgh Center for Public Health Preparedness and the Administrative Office of Pennsylvania Courts published the Pennsylvania Public Health Law Benchbook in Now, in an effort to support local health departments who may be called upon to order public health interventions and file petitions to protect the public s health the Center has developed the Legal Toolkit for Pennsylvania Local Health Departments. The Toolkit consists of model public health orders and related documents that local health departments and municipal solicitors may use as templates when drafting documents seeking judicial support for local health regulation enforcement. The examples herein include notices, orders, and court petitions for nuisance abatement, isolation, quarantine, medical examination or treatment, and building closures. The material contained in the Toolkit is for example only, it is not intended as a substitute for professional legal or other advice. Always seek the advice of an attorney or other qualified professional with any questions you may have regarding a legal matter. i

4 ACKNOWLEDGEMENTS The Legal Toolkit for Pennsylvania Local Health Departments is a product of the University of Pittsburgh Center for Public Health Preparedness Law and Policy Program, created through the leadership and vision of the Center s Co-Director Patricia Sweeney, JD, MPH, RN and funded through the Center for Public Health Practice by the Centers for Disease Control and Prevention cooperative agreement number U90/CCU The Toolkit could not have been produced without the expertise and dedication of the editorial board. We thank them for their contributions to this project. In particular, special appreciation is extended to Elizabeth Ferrell Bjerke, JD for her work in researching, developing, and drafting many of the documents contained herein. In addition, special thanks go to Darren Bresslin, Esq., Administrative Office of Pennsylvania Courts, for his critical content review, and to Jessica Kanzler and Leslie Fink, colleagues at the University of Pittsburgh Graduate School of Public Health Center for Public Health Preparedness whose extraordinary editing efforts made the Toolkit become a reality. Finally, this project would not have been possible without the expert work of Rebecca Morris Chatta, Esq., who served as the lead author of this text. As an Adjunct Professor at the University of Pittsburgh School of Law in Pittsburgh, Pennsylvania and a former Assistant Solicitor for the Allegheny County Health Department, Professor Morris Chatta brought to this project a clear understanding of local public health legal practice and we thank her for sharing her expertise. Editorial Board Members: Patricia M. Sweeney JD, MPH, RN (Chair) Associate Director for Law and Policy University of Pittsburgh Center for Public Health Practice Law Program Co-Director University of Pittsburgh Center for Public Health Preparedness Pittsburgh, PA Elizabeth Ferrell Bjerke, JD Legal Analyst University of Pittsburgh Preparedness and Emergency Response Research Center Pittsburgh, PA Leslie Fink, BA Preparedness Center Coordinator University of Pittsburgh Center for Public Health Preparedness Pittsburgh, PA Samuel Stebbins, MD, MPH Director and Principal Investigator University of Pittsburgh Center for Public Health Preparedness Pittsburgh, PA ii

5 SECTION I INTRODUCTION

6 POLICE POWERS All property is held subordinate to the government s right to reasonably regulate it to preserve the health and safety of the community in which it is located. Property owners are obliged to maintain their property so that it does not become injurious to the community. When a local health department employs police powers, the conditions threatening the public s health should exist or be so imminent, that no other option exists to protect the public s health. Moreover, there should be a substantial nexus between the action and the desired public health goal when local health departments choose the remedy in the name of police power. Determining the necessary extent of the exercise of police powers is the task of municipal and local health department solicitors when circumstances arise that challenge a local health department s ordinary routine. Vaccinations and sanitary measures are commonly used to prevent the majority of the most serious common communicable diseases in today s society, and effective treatment is available for most of those diseases where vaccination is not available. Similarly, the vast majority of businesses comply with federal, state, and local regulations designed to protect public health. However, because there are individuals who decline treatment and vaccination, or who refuse to comply with protective rules and regulations, local health departments on rare occasions seek judicial intervention to facilitate their mission of protecting the public s health. This Legal Toolkit will refer to nuisances or conditions constituting an imminent threat to the public s health. Such conditions include, but are not limited to: reportable conditions, such as Tuberculosis and Human Immunodeficiency Virus (HIV); looming public health threats, such as a strain of Avian Influenza Virus that might become airborne and highly contagious; and commonly occurring but deadly concentrations of environmental contaminants, such as Carbon Monoxide, or Chlorine Gas. Even more mundane occurrences, such as the improper destruction of structures containing asbestos, or sewer overflows, can create conditions necessitating local public health intervention using means more restrictive than generating Notices of Violation and issuing Orders with timelines to abate the nuisances or conditions threatening the public s health. Occasions will arise where it is necessary to move beyond educating and assisting the public in the pursuit of health, to a more authoritarian means of preventing or removing conditions that constitute a menace to public health. 16 P.S (c). Title 16, Chapter 4, Article XXI of Purdon s Pennsylvania Statutes, ( Article XXI, ) Section 12010, sets forth the powers and duties delegated to local health departments by the legislature. Subsection (a) indicates that a local health department s powers are broad; that they are the powers set forth in the rules and regulations of the commonwealth, the Pennsylvania Department of Health, and other commissions, boards, or departments of the commonwealth s government. Other powers include collaborating with other local health departments, hospitals, and jurisdictions not under any local health department. 16 P.S (d-e). They also include making and enforcing rules and regulations (not contrary to law) and creating programs to promote and improve the public s health. 16 P.S (f). Title 28, Chapter 27, Section of the Pennsylvania Code directs local health departments to promptly isolate people suspected of harboring reportable infectious diseases. Pennsylvania Rules of Civil Procedure contemplate and provide guidelines for 2

7 instances when Emergency Preliminary Injunctions may be required. Pa.R.C.P. 203(b)(6). This Legal Toolkit for Pennsylvania Local Health Departments organizes Pennsylvania statutes and rules into templates, so that they may be efficiently applied during unusual and challenging public health events to provide maximal efficiency and consistency. Regardless of the governmental structure of the municipality within which a local health department operates, (i.e. Home Rule Charter or County Commissioners), the director of a local health department and the local health department s legal representative should work closely with the county solicitor (if they are not one and the same) in the use of police powers to prevent or remove public health menaces. Such a collaborative working relationship is not only beneficial during instances when county leadership will be directly involved in the action contemplated, but is also required under Article XXI, in Section 12012(d) when equitable remedies, such as Preliminary Injunctions, are contemplated. REMEDIES AT LAW There are a variety of remedies at law available to enforce federal, state, and local health regulations. The methods most often used are summary criminal complaints and filing judgments to enforce penalty assessments in magisterial or common pleas courts. Less often, local health departments may file actions to compel regulatory compliance in local and federal courts, with or without co-plaintiffs, such as the commonwealth and/or federal agencies with co-jurisdiction. These enforcement and protective measures are not directly addressed in this document. It is important to apply the correct legal procedure to the presenting public health issue. When public health problems arise that fall outside of the realm of the written, it may in fact be necessary to create new laws or regulations to contain them. However, creating laws and regulations is the most time-consuming process of all public health threat abatement solutions. Therefore, until such time as new regulations can be promulgated, it is essential to open and maintain lines of communication and opportunities for settlement with potentially effected entities to minimize harm to the public s health. Finally, where a legal remedy is distant or exceedingly difficult, it is possible with able public relations assistance to engage the public in the pursuit of minimizing risk from public health nuisances through the classic public health tools of education and notice. Reasonable people will use reasonable means to protect themselves and their dependents when they are aware that a public health threat exists. Public awareness through media collaboration is possibly the least labor intensive and most effective public health tool available to local health department directors and solicitors. The messages shared must be carefully managed to focus on the problem with clear instructions and warnings so that the public is not misled as to the severity of the threat or the potential for exposure. EQUITABLE REMEDIES After the aforementioned actions at law have failed, and/or if threats to the public s health are imminent, often the only effective means to protect the public is through the equitable remedy of injunctive relief. Injunctions compel defendants to act or refrain from acting. In the 3

8 case of public health injunctions, the end will always justify the means in the interest of public health. The means may include: closing a public venue; ordering a person suspected of carrying a communicable disease to undergo treatment and quarantine or isolation until they are no longer contagious to others; or to cease and desist an act that endangers the public, such as demolishing a structure without appropriate measures to prevent debris, such as asbestos fibers, from contaminating the air. When public health emergencies arise, unlike the more common regulatory enforcement actions, there is little time for ordinary civil procedure. In these instances, time literally may mean the difference between life and death, or health and illness, and it is essential that local health department procedures are in place to provide an infrastructure for public health legal actions appropriate to the circumstances. This Legal Toolkit provides the essential elements of filings for Preliminary and Emergency Preliminary Injunctions in the courts of common pleas throughout the commonwealth. Facts to be provided in each case are indicated in parentheses with bold and underlined letters, and forms must be amended to accommodate multiple public health issues or defendants. Judges throughout the commonwealth have been introduced to the concepts of public health police powers and procedures appropriate and necessary to protect the public s health. The Pennsylvania Public Health Law Bench Book is available for your reference and for the reference of the judiciary at The most essential element of all emergency filings is the clear description of the facts that differentiate the instant circumstances from the myriad other common instances of public health violations or conditions that do not imminently endanger the public s health. Affidavits and testimony from public health experts can bolster an argument for emergency injunctive relief and should be used whenever possible. Photographs are a valuable tool often forgotten in the rush to respond to a public health emergency, and should be collected at the time of all inspections where violations and threats can be visualized. Describing populations at risk is another key element to convincing the judiciary that an Emergency Preliminary Injunction should be issued, and should be included in the background portion of every brief in support of a Motion for Preliminary Injunction, when applicable. When a defendant s identity is unknown, it is still possible to obtain a Preliminary, Mandatory Preliminary or Emergency Preliminary Injunction. In the case of unidentified contacts of a person known to be infected with a highly communicable and life-threatening disease, due process can be achieved at the time those contacts are identified. Due process will always include notice, an opportunity for a hearing, and an opportunity of appeal. There will soon be procedures in place throughout the commonwealth to hold such hearings via electronic means, so that the public, courtroom staff, attorneys, and judges need not be exposed to a contagious individual during the proceedings. After all reasonable means have been utilized by a local health department director to define a public health emergency, and least restrictive means are proposed to contain it, there is every reason to believe that adequate remedies are available at law and equity to protect the public s health and the rights of individuals whose infections or actions may contribute to the public health emergency 4

9 SECTION II LEGAL FORMS

10 COVER SHEET This Cover Sheet format is appropriate for Motions for Preliminary Injunction and any other Civil Division Motion that the local health department wishes to present, including Motions for Emergency Preliminary Injunction and Motions for Mandatory Preliminary Injunctions. 6

11 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) MOTION FOR PRELIMINARY INJUNCTION Filed on Behalf of: (County) County Health Department Plaintiff Counsel of Record for This Party: (Solicitor s Name), Esquire PA I.D. # (County) County Health Department (Address) (City), Pennsylvania (Zip code) (Telephone) (Fax)

12 NOTICE OF PRESENTATION WITH AFFIDAVIT OF SERVICE This Cover Sheet format is appropriate for Motions for Preliminary Injunction and any other Civil Division Motion that the local health department wishes to present, including Motions for Emergency Preliminary Injunction and Motions for Mandatory Preliminary Injunctions. 8

13 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) (Defendant OR Counsel) (Address) (City), Pennsylvania (Zip code) (Date) NOTICE OF PRESENTATION Kindly take Notice that the attached Motion for Preliminary Injunction shall be presented to Judge (Judge) at Motions Court, Court of Common Pleas of (County) County, (Court Building Name), (Court Building Address), on the day of, 20, at a.m./p.m. in Room. (Solicitor Name), Esquire AFFIDAVIT OF SERVICE I hereby certify that I have caused to be served a true and correct copy of the within motion upon the above-stated individuals at the afore-stated address(es) by First-Class U.S. Mail on the day of, 20. (Solicitor Name), Esquire

14 NOTICE OF AVAILABILITY OF ADMINISTRATIVE APPEAL Notice of Violation or other means of officially notifying a defendant that he or she is believed to have violated a public health regulation. 10

15 NOTICE OF AVAILABILITY OF ADMINISTRATIVE APPEAL (Defendant) (Address) (City), Pennsylvania (Zip code) (Date) In re: Notice of Violation No. (Number) Dear (Defendant): You have been served with a Notice of Violation by the (County) County Health Department indicating that the (County) County Health Department believes that you are in violation of Pennsylvania statutes and/or local rules concerning the public s health. Under Pennsylvania law, any person aggrieved by this action with a direct interest in such adjudication is entitled to appeal it by completing the following: 1) Sending or delivering an Appeal Letter to the director of the (County) County Health Department so that it arrives within ten (10) days of the date of the Notice of Violation. 2) Stating in that Appeal Letter the reason(s) for your appeal of the Notice of Violation. You will be notified within thirty (30) days of the date the (County) County Health Department receives your Appeal Letter of the date, time, and place of an Administrative Hearing to be held by the director of the (County) County Health Department or (his/her) designee (Hearing Officer). You are entitled to bring legal representation to the Administrative Hearing, or you may represent yourself. If you bring to the Administrative Hearing any documents or other records you believe support your appeal, you must leave a true and correct copy of such documents or records with the Hearing Officer. IF YOU REQUIRE LEGAL ASSISTANCE BUT DO NOT KNOW WHO TO CONTACT, YOU MAY CONTACT THE (COUNTY) COUNTY BAR ASSOCIATION AT: (Bar Association phone number) between (#:##) a.m. and (#:##) p.m., Monday through Friday. Very Truly Yours, (Solicitor s Name), Esquire

16 SECTION III PUBLIC HEALTH NUISANCES

17 NOTICE OF VIOLATION FOR ABATEMENT OF PUBLIC HEALTH NUISANCE WITH ORDER TO ABATE 13

18 (Owner/Agent/Occupier) (Address) (City), Pennsylvania (Zip code) (Date) NOTICE OF VIOLATION Service by First Class U.S. Mail The (County) County Health Department has determined that conditions present at (Property) located at (Property Address), (County) County, Pennsylvania, constitute a public health nuisance. The following condition(s) is/are prohibited by law: 1. (cite rule/regulation) 2. (cite rule/regulation) 3. (cite rule/regulation) 4. (cite rule/regulation) These conditions represent a present threat to the public s health that must be corrected within (Number) days. The (County) County Health Department believes that (you/your agent/tenant) are the (owner/occupier) of (Property) and that (you/your agent/tenant) have allowed the conditions to persist. Under Pennsylvania law, the director of the (County) County Health Department has the authority to order (you/your agent/tenant) to abate the nuisance. 16 P.S ORDER YOU ARE HEREBY ORDERED TO ABATE THE NUISANCES ABOVE WITHIN THE TIME PRESCRIBED ABOVE. THIS ABATEMENT IS TO BE COMPLETED AT YOUR OWN EXPENSE AND TO THE SATISFACTION OF THE (COUNTY) COUNTY HEALTH DEPARTMENT ON OR BEFORE (DATE). By: Director

19 IF YOU FAIL TO COMPLY WITH THIS ORDER WITHIN THE TIME SET FORTH ABOVE: You could be charged with a misdemeanor of the second degree. 18 Pa. C.S. 6405; You could be punished with a fine, imprisonment, or both. 16 P.S and 35 P.S ; and, The (County) County Health Department may file a petition with the court seeking to compel you to abate the conditions present on (Property) constituting a public health nuisance, or to close (Property) until the conditions are abated. The (County) County Health Department may abate the conditions constituting a public health nuisance at your expense. The (County) County Health Department may seek a judgment for any expenses it incurs to achieve such abatement and may file a lien on your property if you fail to pay. 16 P.S (d). YOU HAVE THE RIGHT TO APPEAL THIS ORDER. ALL APPEALS MUST BE IN WRITING AND MUST STATE THE REASON FOR APPEAL. ALL APPEALS MUST BE RECEIVED BY THE DIRECTOR OF THE (COUNTY) COUNTY HEALTH DEPARTMENT, AT THE ADDRESS BELOW, WITHIN TEN (10) DAYS OF THE DATE OF THIS NOTICE. Director (County) County Health Department (Address) (City), Pennsylvania (Zip code) IF YOU APPEAL THIS ORDER, YOU MUST STILL COMPLY WITH THE ORDER WITHIN THE TIME SPECIFIED ABOVE UNTIL SUCH TIME THAT IT MAY BE VACATED OR REVISED. YOU ARE ENTITILED TO LEGAL REPRESENTATION IN THIS MATTER. IF YOU HAVE AN ATTORNEY, YOU SHOULD TAKE THIS NOTICE AND ORDER TO YOUR ATTORNEY. IF YOU REQUIRE LEGAL ASSISTANCE BUT DO NOT KNOW WHO TO CONTACT, YOU MAY CONTACT THE (COUNTY) COUNTY BAR ASSOCIATION AT: (Bar Association phone number) between (#:##) a.m. and (#:##) p.m., Monday through Friday.

20 MOTION FOR PRELIMINARY INJUNCTION: CLOSURE 16

21 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) MOTION FOR PRELIMINARY INJUNCTION AND NOW comes Plaintiff, the (County) County Health Department, by and through its attorney, (Solicitor Name), Esquire, and files the following Motion for Preliminary Injunction, averring as follows: 1. (Property) is under the ownership and/or control of Defendant based upon tax records of the municipality; and 2. The (County) County Health Department is a local health department as defined by The Local Health Administration Law. 16 P.S et seq.; and 3. The Local Health Administration Law empowers the (County) County Health Department to formulate regulations that assist in controlling and preventing disease in (County) County. 16 P.S and 35 P.S ( DPCL ); and 4. The (County) County Health Department has the statutory authority to use appropriate control measures to prevent diseases that threaten the public s health. 16 P.S (c); and 5. A Preliminary Injunction will issue when: (1) the injunction is necessary to prevent immediate and irreparable harm not compensable in damages; (2) greater harm would result from denying the injunction than from granting it; (3) the activity sought to be restrained is actionable, and the Plaintiff's right to relief is clear; and (4) the status quo be restored if the injunction is granted. The Woods At Wayne Homeowners Assn. v. Gambone Bros. Construction Co., Inc., 893 A.2d 196, 204. (2006); and 6. Ordering the temporary closure of a venue, such as (Property), to control and prevent disease is an appropriate measure to prevent disease transmission; and 7. The (County) County Health Department has determined in an inspection (Attached hereto as Exhibit A. ), that (a) violation(s) of the (County) County Health Department s

22 Rules and Regulations present at (Property) present(s) a significant threat to the public s health; and 8. On (Order Date), the (County) County Health Department ordered Respondent to temporarily close (Property) as a method of safeguarding the public s health; and 9. (Defendant) has refused to comply with the (County) County Health Department Order and has offered no valid reason for such refusal; and 10. There are no less restrictive means of protecting the public s health other than by closing (Property) until such time as the aforementioned health regulation violations have been abated to the (County) County Health Department s satisfaction. WHEREFORE, the (County) County Health Department respectfully requests that this Honorable Court issue a Preliminary Injunction, ordering (Defendant) to close (Property) until such time that the aforementioned conditions threatening the public s health are abated to the satisfaction of the (County) County Health Department. Respectfully submitted, (Solicitor s Name), Esquire

23 EXHIBIT A (County) County Health Department Inspection Report

24 BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION: CLOSURE 20

25 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) PLAINTIFF S BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Background On (Inspection Date), the (County) County Health Department personnel conducted an inspection of (Property) located at (Property Address), (County) County, Pennsylvania, and discovered conditions that constituted violations of (County) County Health Department Rules and Regulations. (Attached hereto as Exhibit A. ) On (Notice of Violation Date) the (County) County Health Department issued a Notice of Violation to (Defendant) ( Defendant ) stating that (a) condition(s) present at (Property) violated local health regulations and constitute(d) a significant threat to the public s health. (Attached hereto as Exhibit B. ) These violation(s) include: (Cite violations). (Property) is under the ownership and/or control of Defendant based upon tax records of the municipality. After receiving the Notice of Violation, Defendant failed to abate the violation(s) within (the time prescribed). Because the violation(s) constitute(s) a significant threat to human health, on (Order Date) the (County) County Health Department ordered Defendant, pursuant to The Local Health Administration Law to temporarily close (Property). (Attached hereto as Exhibit C. ) Defendant has not closed (Property), which continues to pose a significant threat to the public s health due to persistent health regulation violations. The (County) County Health Department believes that members of the public who are exposed to (Property) may develop or be subject to (Health Conditions)(s), which can result in (Outcome)(s) i.e. death, serious illness, permanent disability). Statutory Basis for Closure The Local Health Administration Law empowers the directors of local health departments to abate public health nuisances. 16 P.S (c).

26 Where the party seeking special relief is an instrumentality of the Commonwealth, such as a local health department created by Pennsylvania statute, no bond shall be required. Pa.R.C.P. No. 1531(b). Common Law Basis for Closure A Preliminary Injunction will lie where it is appropriate and there is no adequate remedy at law. A Preliminary Injunction will issue when: (1) the injunction is necessary to prevent immediate and irreparable harm not compensable in damages; (2) greater harm would result from denying the injunction than from granting it; (3) the activity sought to be restrained is actionable, and the Plaintiff's right to relief is clear; and (4) the status quo be restored if the injunction is granted. The Woods At Wayne Homeowners Assn. v. Gambone Bros. Construction Co., Inc., 893 A.2d 196, 204. (2006). Analysis of Facts The (County) County Health Department has determined that violations of its health code, including: (Cite violations), are present at (Property), and has determined that closure of (Property) is the most appropriate measure to protect the public s health. There are no less restrictive measures capable of protecting the public s health at this time. A Preliminary Injunction is appropriate in this case because there is no remedy at law that will prevent harm to the public short of a Court Order directing Defendant to close (Property) to the public. Furthermore, the four prongs of the Pennsylvania requirements for Preliminary Injunction are satisfied: Immediate and irreparable harm to the public health will ensue if (Property) is permitted to remain open prior to health code violation(s) being eradicated; any pecuniary harm to Defendant from closure of (Property) is not as great as the harm to the public should (Conditions likely to occur with continued exposure); the (County) County Health Department has the legal authority to order the closure of (Property); and the status quo can be achieved by preventing further exposure of the public to the health threats present at (Property). Conclusion This Honorable Court should enjoin (Property) from opening to the public in the instant matter because immediate and irreparable harm is likely to befall the public exposed to

27 (Property) until such time that the (County) County Health Department has determined that no further unnecessary risk to the public s health exists at (Property). Respectfully submitted, (Solicitor s Name), Esquire

28 EXHIBIT A (County) County Health Department Inspection Report

29 EXHIBIT B (County) County Health Department Notice of Violation

30 EXHIBIT C Order to Close (Property)

31 SECTION IV PUBLIC HEALTH EMERGENCIES

32 NOTICE OF VIOLATION FOR ABATEMENT OF IMMINENT THREAT TO PUBLIC HEALTH 28

33 (Owner/Agent/Occupier) (Address) (City), Pennsylvania (Zip code) (Date) NOTICE OF VIOLATION Hand Service The (County) County Health Department has determined that conditions present at (Property) located at (Address), (County) County, Pennsylvania, constitute an imminent threat to the public s health. The following conditions, detected at an inspection on (Date) are prohibited by law: 1. (cite rule/regulation) 2. (cite rule/regulation) These conditions represent a present threat to the public s health that must be corrected within (Number) hours. The (County) County Health Department believes that (you/your agent/tenant) are the (owner/occupier) of (Property) and that (you/your agent/tenant) have allowed these conditions to persist. Under Pennsylvania law, the director of the (County) County Health Department has the authority to order (you/your agent/tenant) to abate the nuisance. 16 P.S

34 NOTICE OF COMMUNICABLE DISEASE 30

35 (Owner/Agent/Occupier) (Address) (City), Pennsylvania (Zip code) (Date) NOTICE OF COMMUNICABLE DISEASE Hand Service The (County) County Health Department has determined that conditions present at (Property) located at (Address), (County) County, Pennsylvania, constitute an imminent threat to the public s health. The following communicable disease, (Disease), detected by laboratory analysis, has been found in a(n) (employee/tenant/patient/food) at your (Property). This communicable disease represents a present threat to the public s health. The only means to protect the public patronizing (Property) is to prevent exposure until such time that the (County) County Health Department can determine exactly how the above communicable disease was transmitted or which (employees/tenants/patients) are infected with the above disease. Under Pennsylvania law, the director of the (County) County Health Department has the authority to order you to close (Property). 16 P.S

36 EMERGENCY ORDER TO CLOSE 32

37 EMERGENCY ORDER YOU ARE HEREBY ORDERED TO CLOSE (PROPERTY) IN (NUMBER) HOURS. THE (COUNTY) COUNTY HEALTH DEPARTMENT WILL NOTIFY YOU WHEN (PROPERTY) CAN BE RE-OPENED TO THE PUBLIC. IF YOU FAIL TO COMPLY WITH THIS ORDER: By: Director You could be charged with a misdemeanor of the second degree. 18 Pa. C.S. 6405; You could be punished with a fine, imprisonment, or both. 16 P.S ; 35 P.S ; and, The (COUNTY) County Health Department may file a petition with the Court seeking to compel you to abate the conditions present at (Property) constituting a public health nuisance, to close (Property) until the conditions are abated, or to allow the (County) County Health Department to do so at your expense. The (County) County Health Department may seek a judgment for any expenses it incurs during such abatement and may file a lien on your property if you fail to pay. 16 P.S (d). YOU HAVE THE RIGHT TO APPEAL THIS ORDER. ALL APPEALS MUST BE IN WRITING AND MUST STATE THE REASON FOR APPEAL. ALL APPEALS MUST BE RECEIVED BY THE DIRECTOR OF THE (COUNTY) COUNTY HEALTH DEPARTMENT, AT THE ADDRESS BELOW, WITHIN TEN (10) DAYS OF THE DATE OF THIS NOTICE. Director (County) County Health Department (Address) (City), Pennsylvania (Zip code) APPEALING THIS ORDER DOES NOT EXCUSE YOUR OBLIGATION TO COMPLY WITHIN THE TIME SPECIFIED ABOVE.

38 YOU ARE ENTITILED TO LEGAL REPRESENTATION IN THIS MATTER. IF YOU HAVE AN ATTORNEY, YOU SHOULD TAKE THIS NOTICE AND ORDER TO YOUR ATTORNEY. IF YOU REQUIRE LEGAL ASSISTANCE BUT DO NOT KNOW WHO TO CONTACT, YOU MAY CONTACT THE (COUNTY) COUNTY BAR ASSOCIATION AT: (Bar Association phone number) between (#:##) a.m. and (#:##) p.m., Monday through Friday.

39 CERTIFICATION OF SERVICE 35

40 CERTIFICATION OF SERVICE I hereby certify that the within (Notice of Violation OR Notice of Communicable Disease) and Emergency Order were served, in-hand, to the above-named individual on at a.m./p.m. Signature of the Health Department representative I attest to having received the within (Notice of Violation OR Notice of Communicable Disease) and Emergency Order on at a.m./p.m. Signature of Subject or Adult member of household If no person is present to attest to service, this notice shall be affixed in a prominent location on or near the main door of the property. Additionally, a copy of this notice shall be mailed to the owner of record by First Class U.S. Mail within one business day. cc: (County Solicitor name), Esquire

41 MOTION FOR EMERGENCY PRELIMINARY INJUNCTION: EMERGENCY CLOSURE 37

42 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) MOTION FOR EMERGENY PRELIMINARY INJUNCTION AND NOW comes Plaintiff, the (County) County Health Department, by and through its attorney, (Solicitor Name), Esquire, and files the following Motion for Emergency Preliminary Injunction, averring as follows: 1. (Property) located at (Property Address), (County) County, Pennsylvania, is under the ownership and/or control of Defendant based upon tax records of the municipality; and 2. The (County) County Health Department is a local health department as defined by The Local Health Administration Law. 16 P.S et seq.; and 3. The Local Health Administration Law and The Disease Prevention and Control Law of 1955 empower the (County) County Health Department to control and prevent disease in (County) County. 16 P.S and 35 P.S ( DPCL ); and 4. The (County) County Health Department has the statutory authority to use appropriate control measures to prevent conditions that threaten the public s health. 16 P.S (c); and 5. In exigent circumstances, an ex parte hearing may occur, the result of which is an Emergency Preliminary Injunction. Pa.R.C.P. No. 1531(a); and 6. The (County) County Health Department has attempted to notify (Defendant) by hand delivery of (a(n) Emergency Notice of Violation OR Notice of Communicable Disease) and Order to Close (Property) on (Date) (Attached hereto as Exhibit A ) ; and 7. The exigent circumstances before this Court are: (Exigent Circumstances); and 8. A Preliminary Injunction will issue when: (1) the injunction is necessary to prevent immediate and irreparable harm not compensable in damages; (2) greater harm would

43 result from denying the injunction than from granting it; (3) the activity sought to be restrained is actionable, and the Plaintiff's right to relief is clear; and (4) the status quo be restored if the injunction is granted. The Woods At Wayne Homeowners Assn. v. Gambone Bros. Construction Co., Inc., 893 A.2d 196, 204. (2006); and 9. Ordering the temporary closure of a venue, such as (Property), to control and prevent disease is an appropriate measure to prevent harm to the public s health; and 10. The (County) County Health Department has determined in (an inspection OR Report of Communicable Disease) (Attached hereto as Exhibit B. ), that ((a) violation(s) of the (County) County Health Department s Rules and Regulations OR persons/foods harboring (Disease)) present at (Property) present(s) a significant threat to the public s health; and 11. On (Order Date), the (County) County Health Department ordered (Defendant) to temporarily close (Property) as a method of safeguarding the public s health; and 12. (Defendant) has refused to comply with the (County) County Health Department Order and has offered no valid reason for such refusal; and 13. There are no less restrictive means of protecting the public s health other than by closing (Property) until such time as the aforementioned (health regulation violations OR conditions likely to spread communicable disease) have been abated to the (County) County Health Department s satisfaction; and 14. Because the matter before this Court is a public health emergency, this Court may issue an Emergency Preliminary Injunction, without the need for a hearing. Pa.R.C.P. No. 1531(a); and 15. The Plaintiff, the (County) County Health Department, a statutorily created agency of (County) County is not required to post a bond. Pa.R.C.P. No. 1531(b). WHEREFORE, the (County) County Health Department respectfully requests that this Honorable Court issue an Emergency Preliminary Injunction, ordering (Defendant) to close (Property) until such time that the aforementioned conditions threatening the public s health are abated to the satisfaction of the (County) County Health Department. Respectfully submitted, (Solicitor s Name), Esquire

44 EXHIBIT A (Notice of Violation OR Notice of Communicable Disease) and Order to Close (Property)

45 EXHIBIT B (County) County Health Department (Inspection Report OR Report of Communicable Disease) If this Exhibit Contains Individually Identifiable Health Information, the local health department should move that it be reviewed by the Court in Camera.

46 BRIEF IN SUPPORT OF MOTION FOR EMERGENCY PRELIMINARY INJUNCTION: CLOSURE 42

47 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) PLAINTIFF S BRIEF IN SUPPORT OF MOTION FOR EMERGENCY PRELIMINARY INJUNCTION Background (Property) is under the ownership and/or control of Defendant according to municipal tax records. (Attached hereto as Exhibit A. ) The (County) County Health Department is a local health department, duly established according to the requirements set forth in The Local Health Administration Law. On (Inspection Date) the (County) County Health Department personnel (conducted an inspection of (Property) and discovered conditions that constituted violations of (County) County Health Department Rules and Regulations OR received a laboratory report indicating that a communicable disease likely to cause irreparable harm to patrons of (Property) was associated with food or personnel at (Property).) (Attached hereto as Exhibit B. ) On (Notice of Violation OR Notice of Communicable Disease Date) the (County) County Health Department issued a (Notice of Violation OR Notice of Communicable Disease) to (Defendant) ( Defendant ) stating that (a) condition(s) present at (Property) violated local health regulations and/or the presence of a source of communicable disease constitute(d) a significant threat to the public s health. (Attached hereto as Exhibit C. ) These violation(s) include: 1. (cite rule/regulation) 2. (cite rule/regulation) 3. (cite rule/regulation) 4. (cite rule/regulation)

48 The circumstances above constitute an imminent threat to the public s health because exposure to them is likely to result in (describe irreparable harm, i.e. injury illness, permanent disability) and/or death. (After receiving the Notice of Violation, Defendant failed to abate the violation(s) within (the time prescribed) OR There is no means to protect the public from (Disease) at this time other than closing (Property).) Because the (Violation(s) OR Disease) constitute(s) a significant threat to human health, on (Order Date) the (County) County Health Department ordered Defendant, pursuant to The Local Health Administration Law, 16 P.S et seq.(and The Disease Prevention and Control Law of P.S et seq. ) [if appropriate]) to immediately close (Property). (Attached hereto as Exhibit D. ) Defendant has not closed (Property), which continues to pose a significant threat to the public s health due to (persistent health regulation violations OR continued cases of disease) linked to patronizing (Property). The (County) County Health Department believes that members of the public who are exposed to (Property) may develop (Health Conditions(s)), which can result in (Outcome(s) ie. death, serious illness, permanent disability). Statutory Basis for Closure The Local Health Administration Law empowers the directors of local health departments to abate public health nuisances. 16 P.S (c). The Disease Prevention and Control Law of 1955 requires that certain serious communicable illnesses are reported to local health directors so that they may prevent additional cases of these illnesses among the exposed public. 35 P.S The Disease Prevention and Control Law of 1955 also provides that local health departments shall carry out appropriate control measures to protect the public from these communicable diseases. 35 P.S When exigent circumstances exist, requiring immediate action to prevent harm to the public s health, an ex parte hearing may occur resulting in an Emergency Preliminary Injunction. Pa. R. C. P. No. 1531(a). Where the party seeking special relief is an instrumentality of the Commonwealth, such as a local health department created by Pennsylvania statute, no bond shall be required. Pa.R.C.P. No. 1531(b).

49 Common Law Basis for Closure A Preliminary Injunction will lie where it is appropriate and there is no adequate remedy at law. A Preliminary Injunction will issue when: (1) the injunction is necessary to prevent immediate and irreparable harm not compensable in damages; (2) greater harm would result from denying the injunction than from granting it; (3) the activity sought to be restrained is actionable, and the Plaintiff's right to relief is clear; and (4) the status quo be restored if the injunction is granted. The Woods At Wayne Homeowners Assn. v. Gambone Bros. Construction Co., Inc., 893 A.2d 196, 204. (2006). Analysis of Facts The (County) County Health Department has determined that (violations of its health code, including: 1. (cite rule/regulation) 2. (cite rule/regulation) 3. (cite rule/regulation) 4. (cite rule/regulation) are OR that (Disease), a communicable disease has been found to be associated with being) present at (Property) and has determined that closure of (Property) is the most appropriate measure to (protect the public s health OR control (Disease)). No remedy at law is appropriate to compensate the harm contemplated herein: (list contemplated harm(s)). The nature of the (violations OR health conditions) are (cite reasons why this is an emergency situation) that immediate action is necessary to prevent harm to the public s health. Due to these exigent circumstances, an Emergency Preliminary Injunction should issue posthaste, with a hearing to be held at a later date. The (County) County Health Department, pursuant to the Local Health Administration Law, has the statutory authority to order such closure, which is the least restrictive means to protect the public s health. Because the (County) County Health Department is an instrumentality of the Commonwealth and (Municipality), no bond should be required. PA.R.C.P. No. 1531(b).

50 The (County) County Health Department has (attempted to) notified(y) Defendant that a public health emergency exists. The Defendant has heretofore refused to close (Property). Conclusion This Honorable Court should issue an Order enjoining Defendant from holding (Property) open to the public in the instant matter because (restate conclusion from analysis of facts) until such time that it has found that no further unnecessary risk to the public s health exists. Respectfully submitted, (Solicitor s Name), Esquire

51 EXHIBIT A Municipal Tax Records for (Property)

52 EXHIBIT B (County) County Health Department (Inspection Report OR Lab Report)

53 EXHIBIT C (Notice of Violation OR Notice of Communicable Disease)

54 EXHIBIT D Order to Close (Property)

55 ORDER FOR ISOLATION AND TREATMENT OF COMMUNICABLE DISEASE WITH CERTIFICATION OF SERVICE The Isolation Order Section should apply and be administered only in those cases where there is a grave risk of disease transmission to the public or to caregivers or others who may come in contact with the affected individual. It should be omitted in cases where treatment alone and instructions to avoid transmitting the disease to others are sufficient to protect the public s health. 51

56 ORDER FOR ISOLATION AND TREATMENT OF COMMUNICABLE DISEASE By Hand Delivery (Defendant) (Address) (City), Pennsylvania (Zip code) (Date) The (County) County Health Department has received a report that you are infected with (Disease). (Disease) is a communicable disease, which means that you can spread it to others who have not been previously infected, or whose immunity has waned. Until you undergo treatment, you will be a danger to others because you can spread (Disease), which makes people seriously ill and may cause death. The (County) County Health Department has the legal authority to order you to undergo treatment for (Disease) and to order you to enter into isolation. 16 P.S ; 35 P.S YOU ARE HEREBY ORDERED TO REPORT TO (HEALTH CARE PROVIDER) LOCATED AT (ADDRESS) ON (DATE) AT (TIME) FOR TREATMENT OF (DISEASE). If you do not appear at the above-mentioned place at the above-mentioned time: You may be punished with a fine, imprisonment, or both. 35 P.S ; 35 P.S ; and The (County) County Health Department may petition the Court to order you to undergo treatment, against your will. 35 P.S ; and, The (County) County Health Department may pursue a Court Order compelling you to isolation. 35 P.S

57 YOU ARE HEREBY ORDERED TO REPORT TO (LOCATION) FOR ISOLATION FROM THE GENERAL PUBLIC. Isolation will separate you from other people who are not ill or who have not been exposed to (Disease). The location and duration of the isolation will be determined by the (County) County Health Department. 35 P.S ; 28 Pa. Code You will remain in isolation until the (County) County Health Department determines that your disease status is no longer a danger to the health of others. 35 P.S (a.2) and 28 Pa. Code YOU ARE ENTITLED TO LEGAL REPRESENTATION IN THIS MATTER. IF YOU REQUIRE LEGAL ASSISTANCE BUT DO NOT KNOW WHO TO CONTACT, YOU MAY CONTACT THE (COUNTY) COUNTY BAR ASSOCIATION AT: (Bar Association phone number) between (#:##) a.m. and (#:##) p.m., Monday through Friday.

58 CERTIFICATION OF SERVICE I hereby certify that the within Order for Isolation and Treatment for Communicable Disease was served, in-hand, to the above-named individual on at a.m./p.m. Signature of the Health Department representative I attest to having received the within Order for Isolation and Treatment for Communicable Disease on at a.m./p.m. Signature of Subject or Adult member of household If no person is present to attest to service, this notice shall be affixed in a prominent location on or near the main door of the property. Additionally, a copy of this notice shall be mailed to the owner of record by First Class U.S. Mail within one business day.

59 MOTION FOR MANDATORY PRELIMINARY INJUNCTION: ISOLATION AND TREATMENT 55

60 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) MOTION FOR MANDATORY PRELIMINARY INJUNCTION AND NOW comes Plaintiff, the (County) County Health Department, by and through its attorney, (Solicitor Name), Esquire, and files the following Motion for Mandatory Preliminary Injunction, averring as follows: 1. The (County) County Health Department is a local health department as defined by The Local Health Administration Law. 16 P.S et seq.( LHAL ); and 2. Where the party seeking special relief is an instrumentality of the Commonwealth, such as a local health department created by Pennsylvania statute, no bond shall be required. Pa.R.C.P. No. 1531(b); and 3. The Local Health Administration Law and The Disease Prevention and Control Law of 1955 empower the (County) County Health Department to control and prevent disease in (County) County. 35 P.S et seq. ( DPCL ); and 4. The (County) County Health Department has the statutory authority to use appropriate control measures to prevent diseases that threaten the public s health. 16 P.S (c); and 5. The (County) County Health Department has determined through a Report of Communicable Disease (Attached hereto as Exhibit A ), that the Defendant is infected with (Disease), and thereby poses a significant threat to the public s health; and 6. On (Order Date), the (County) County Health Department recommended that Defendant undergo treatment and ordered Defendant to remain confined at (Location) as a method of safeguarding the public s health (Attached hereto as Exhibit B ); and 7. (Defendant) has refused to comply with the (County) County Health Department treatment recommendation and Order, and has offered no valid reason for such refusal; and