By Brett Nachtigall
HOT SPRINGS – In response to the current public health crisis, effective today, April 9, businesses in Hot Springs are now required to adhere to a new ordinance which implements measures to slow the community spread of the COVID-19 coronavirus.
Ordinance 1212, which saw its Second Reading unanimously passed by the Hot Springs City Council at their regular meeting on Monday, April 6, states that all dining establishments and bars are to close to on-site/on-sale consumption. Those businesses however may continue to operate by modifying their business practices to provide “take-out, delivery, curbside service and drive-thru service” while also practicing safe social distancing measures in compliance with current federal and state health guidelines.
Facilities such as churches, health clubs, movie theaters, bowling alleys, casinos and most all other retail and service businesses are permitted to stay open, but must not have any more than 10 people inside, which includes employees. If they cannot adhere to the 10-person rule, then they too must close and cease operations.
Businesses that are exempt from the closures mandated in the ordinance are those that offer food and beverages for off-site consumption like grocery stores, pharmacies, hardware and supply stores, health care facilities, and other emergency facilities.
The full ordinance is available at this link https://frcheraldstar.com/legals/1650-city-of-hot-springs-ordinance-1212
The ordinance will remain in effect until May 31, 2020, at which time it shall be automatically repealed unless specifically adopted for an additional period of time by the City Council.
Prior to officially passing the ordinance this past Monday night, the city council also met last Wednesday night, April 1, for a special meeting where they unanimously passed the First Reading of the ordinance. A earlier version of that same ordinance was originally passed by the council at a special meeting on March 26, but then vetoed by Mayor George Kotti the following day.
In his veto remarks, Mayor Kotti said the reason for his actions were because he believed “the Council was given some inaccurate legal advice from the City Attorney during and prior to the meeting,” in regard to SDCL 9-19-13, which governs the effective date of resolutions and ordinance. Based on Kotti’s interpretation of the law, he believed cities had the ability to exercise an emergency clause to enact certain ordinances immediately upon passage.
But as it turned out, the city’s legal expert, Attorney Garland Goff of Custer, knew what he was talking about.
Goff had advised the city council that they could bypass the normal 20-day wait period, but still needed to approve First and Second Readings and have it published in their legal newspaper – which is what the council ultimately ended up doing with the passage of Ordinance 1212 on Monday, April 6.
“I have to apologize to our attorney Garland, for saying that we got bad legal advice. We really didn’t,” Mayor Kotti acknowledged at the April 1 meeting. “I guess all I’ll say is that I didn’t understand the legal advice that we got.”
Later in the April 1 meeting, Council President Bob Nelson, who originally brought forth Ordinance 1212 for council consideration on March 26, said that he too also misinterpreted SDCL 9-19-13, which is why he supported the mayor’s veto at the time.
The mayor’s veto actions didn’t end up delaying the process, as the ordinance was originally intended to go into effect on April 9 regardless, following the planned Second Reading on April 6, and then subsequent publishing of the ordinance in the April 9 Fall River County Herald-Star.
What the veto did end up doing was allow time for the council to modify the ordinance’s wording to make it more flexible for businesses to still operate, if they can maintain less than 10 people in their establishment at any given time. With significant changes like that from the original First Reading on March 26, the ordinance’s approved First Reading was then performed at the April 1 meeting.
One surprising development – at least to some members of the city council – that did occur at the April 1 Special Meeting were comments made by a pair of local spa and salon owners who wanted to City of Hot Springs to require them to be shut down.
Teresa Rutz, owner of Polished Salon, wanted the working hair stylists and massage therapists in Hot Springs specifically named in the ordinance to be required to close, due to their inability to perform their jobs outside of the recommended six-foot distance of their clients and the related health risks involved with that close contact.
Rutz also talked about how even when they tell their clients they are closing down due to health risks, their clients still insist on them offering their services, in spite of the concerns.
“Why can’t you just close your doors?” asked Mayor Kotti.
Rutz responded by saying that they are closing their doors, “but the reason why I’m asking you to mandate it is in case that helps us with unemployment.”
Since she and her fellow stylists are all self-employed, Rutz said they wouldn’t normally qualify to receive unemployment benefits. And based on what she had read so far about the coronavirus-related federal aid, self-employed persons would need to be mandated to close in order to qualify for the government funds.
Heather Ramsey, who owns Body Bliss Massage and Body Treatments in Hot Springs, also spoke to the council in support of what Rutz stated. She expanded on the health concerns of remaining in business, but also spoke of the pushback she was receiving from clients who demanded her services.
When asked to respond by the mayor, City Attorney Goff said the wording in the ordinance does not close any business in Hot Springs, unless they cannot adhere to the requirement of having less than 10 people present in their establishments. All businesses in town are being given the opportunity to modify their practices and remain open, by either offering off-site consumption opportunities or limiting the amount of customers.
“So currently, unless you have more than 10 people in your business, you wouldn’t fall under this ordinance as written,” Goff told Rutz.
Speaking directly to the city council, Goff said if the council wanted to amend the ordinance specifically to address salons or massage therapists, “it would have to be for the specific intent to address the health concerns related to the virus.”
“If we were to basically add her salon on because of the possibility for unemployment benefits, that would exceed our authority,” Goff said.
Later in the April 1 meeting, the concerns of the local stylists was again brought up, where it was discussed that it was possible to address their needs through a change to the resolution that was passed and is tied to the ordinance.
At the April 6 meeting, the council again revisited the topic as a ‘discussion only’ agenda item.
During that discussion, councilman Bill Lukens said, after giving it considerable thought, he would oppose a change to the resolution to force a closure of salons. He cited numerous reasons, including how Gov. Kristi Noem called for all citizens to take steps on their own to address the public health crisis. He said if that means closing their business to do so, then they should without being told to close by the city, especially if the intent for that change was to help them attain federal assistance.
Fellow councilmembers Bob Nelson, Craig Romey and Alison Ritterbush also made similar comments which expressed how they would not support a change to the resolution either.
In other COVID-19 related business at the April 5 meeting, the city council approved a motion to assist city residents who may be financially impacted by the current health crisis. The motion allows the City Finance Officer to waive late fee penalties for unpaid City utility bills and also discontinue terminating services by disconnection on unpaid bills effective for a period of 90 days unless rescinded sooner by future action of the council.