Since March, Gov. Janet Mills has issued dozens of executive orders outlining public health guidelines and recommendations for how businesses and individuals can safely navigate the coronavirus pandemic.

She has repeatedly said that her top priority is the health and safety of Maine people and has twice prevailed in court over challenges to some of the restrictions she has imposed on economic and social activity.

Yet even though Mills has broad legal authority to issue mandates and punish those who violate them, her administration’s approach so far has been to strive for voluntary compliance, coupled with education for those who may not be following the rules.

From a public health standpoint, her approach seems to be working: Maine’s rate of COVID-19 infection is among the lowest in the nation. The governor’s stance has also likely helped to cushion her from attacks by political or other critics who would argue that her orders are dictatorial.

But the approach also leaves room for discretion, noncompliance and confusion. Two of the state’s biggest outbreaks have stemmed from events where guidelines were not followed – an August wedding in the Millinocket area and a series of events this month hosted by a church in Brooks. A community hockey league whose leaders say they thought they were following state protocols was recently threatened with sanctions.

And with cases rising precipitously across the nation, including in nearby New Hampshire and Massachusetts, a harder line may be necessary to protect the public.

“We assume that any potential noncompliance with measures designed to protect public health and safety is inadvertent,” said Lindsay Crete, Mills’ spokeswoman. “The administration then works with businesses and organizations to help them understand rules or guidelines so that they can take appropriate corrective action. “

As for penalties, Crete said the administration pursues them, “only if violations are repeated, appear to be purposeful, and present a threat to the health and safety of Maine people.”

Justin Lessler, associate professor at the Johns Hopkins Bloomberg School of Public Health, said from what he’s seen, most states are taking a soft approach when it comes to enforcing regulations put in place to combat COVID-19.

“It seems that, for the most part, regulations are not being strictly enforced,” he said. “The norm seems to be that regulations are set forth with the expectation that people follow them and any enforcement is for repeat violations or in clear places where compliance is particularly important, like day cares.”

One consequence of Mills’ approach is that confusion persists for some about whether guidelines and recommendations are voluntary or mandates that might be subject to enforcement or penalty.

A recent example involves the Maine Amateur Hockey Association, whose executives got a stern letter this month from the Department of Health and Human Services indicating that the league was not following the state’s COVID-19 community sports guidelines. Specifically, DHHS referenced competition between teams across the state and with teams in other states. Under the guidelines, hockey is deemed moderate risk and indoor competition should be limited to within-team competition, or scrimmages.

The letter was sent just days after the state learned that a league referee who tested positive for COVID-19 might have exposed as many as 400 people at eight games in Biddeford, North Yarmouth Academy and Laconia, N.H., and it prompted the association to suspend all games and seek additional guidance.

Mike Keaney, the association president, has said he believed the guidelines were recommendations, not mandates, and said he tried to get clarity from the state in August before games began but never got a response. So, they played.

The DHHS letter, however, said if noncompliance continues, “We will not hesitate to harden what had been strong recommendations into stringent requirements and take all reasonable and practicable action to enforce them to protect the health and safety of Maine people.”

Players from a Lewiston youth hockey team head inside the Biddeford Ice Arena for their game on Saturday. Brianna Soukup/Staff Photographer

On Saturday, the hockey association resumed games, even though the state has not signed off. It’s not clear what will happen next.

The state’s language seems to indicate that the guidelines are indeed recommendations but can morph into requirements in some circumstances. That disconnect reflects the challenges states like Maine have faced in enforcing guidelines put in place to combat the pandemic and the balancing act of protecting the public while allowing some return to normalcy.

“For our public health measures to be most effective and to minimize the measures we have to take, we need people to act together and have clear messaging. And messaging has been a challenge,” Lessler said.

The state has cited roughly two dozen businesses for “imminent health hazard” violations related to COVID-19. All but one have come since Aug. 20, according to state records, which supports the administration’s contention that it’s only going after offenders that are willfully not following guidelines. Most of the businesses that have received health hazard citations are restaurants. In almost every case, the business was cited for not enforcing mask-wearing or social-distancing requirements for patrons and/or employees.

But for businesses or organizations like Maine Amateur Hockey, which doesn’t have a specific state license that can be pulled, the picture is murkier. If they don’t know whether something is clearly a mandate, it’s less clear how they should be penalized.

Steve Hewins, president and CEO of Hospitality Maine, a trade association for restaurants and lodging places, said there have been persistent questions going back to April about what restrictions might be enforced and who would conduct that enforcement.

Hewins wasn’t critical of Gov. Mills for implementing strict guidelines, but said he wishes his industry had been given a greater role in their development.

“Often guidelines are announced and then we start getting all these questions from members,” he said. “And some of the biggest questions have been about enforcement.”

Audra Caler-Bell, town manager of Camden, also said there has been lingering confusion among businesses about enforcement. Camden was one of dozens of Maine communities that have received funding under the Keep Maine Healthy program for education and enforcement of COVID-19 guidelines.

“It’s not a criticism of the state, I just think broad guidelines don’t cover everything,” Caler-Bell said. “I think everyone is trying to do our very best to interpret them.”

Caler-Bell offered an example.

“We had a hotel here that was doing wedding events and had gotten guidance from an (industry group),” she said. “It turns out that the guidance wasn’t entirely in line with what the CDC was asking. So we went back and forth with the hotel, but they were more than willing to make the adjustments.

“I think most business realize it’s bad business to not do everything they can to keep people safe.”

Crete, the governor’s spokeswoman, said the administration has been impressed by and grateful for the high level of voluntary compliance and said it’s a major reason Maine’s infection rate remains among the lowest in the nation.

“We recognize that the various industry and activity-specific rules and guidelines, which require novel changes to how we live our daily lives, can be challenging for people and businesses, especially as these rules and guidelines evolve in response to emerging scientific evidence about the virus,” she said. “Throughout the pandemic, the administration has promulgated rules and guidelines that are straightforward yet tailored to a wide variety of circumstances to support the resumption of as many activities as safely possible during this unprecedented time.”

One of the ways the administration has done this is through Keep Maine Healthy grants for municipalities like Camden and others.

Brian Wood, assistant city manager in Auburn, said the city has used its grant to purchase personal protective equipment for businesses and for outreach and education on COVID-19 guidelines. Like Caler-Bell, he said the softer approach has been successful.

“We haven’t had any businesses that are pushing back against this,” he said.

Maine isn’t alone on questions about enforcement.

In New York, Gov. Andrew Cuomo threatened to pull funding from local governments if they failed to enforce distancing measures in COVID-19 hot spots.

Across the Canadian border, the approach to enforcement is a little stronger. Quebec Premier François Legault says police in the province’s red zones – regions where COVID-19 cases are surging – will be issuing $1,000 fines to those who violate newly strengthened public health rules.

In other states, though, courts have struck down or legislatures have hampered enforcement efforts.

In Michigan, Attorney General Dana Nessel said this month she would no longer enforce Gov. Gretchen Whitmer’s executive orders after a state supreme court ruling. That decision created uncertainty and prompted local municipalities to come up with their own public health orders.

Also in Michigan, the FBI arrested 13 individuals who were part of right-wing militia group for allegedly attempting to kidnap Whitmer. They were motivated, at least in part, by the governor’s pandemic restrictions.

Similarly, in Wisconsin, a judge blocked Gov. Tony Evers’ administration from enforcing indoor capacity restrictions that were designed to slow the spread of COVID-19. Wisconsin has been one of the states where cases have been rising most rapidly.

Mills has twice been sued over her executive orders on COVID-19 – once by a church objecting to restrictions on in-person services, once by a group of business owners that argued restrictions were too onerous. Judges sided with her each time.

But resistance to some of the executive orders remains, especially among conservatives. Masks, in particular, have become a rallying cry for people who are upset by what they perceive as government overreach, even though public health experts say masks are the most effective tool we have. Anti-mask protests were held Saturday in Augusta and Portland.

Mills, though, has not wavered in her approach, even after drawing ire from some in the business community who feel her orders have been too restrictive. With cases trending upward over the last two months, that’s unlikely to change.

And although there has not been an outbreak yet connected to youth hockey, fears are not unfounded.

Several COVID-19 outbreaks have been associated with hockey teams in nearby states.

This month, New Hampshire Gov. Chris Sununu instituted a two-week pause on hockey amid an investigation of 158 cases of COVID-19 associated with six different outbreaks connected to the sport. Massachusetts officials also shut down all indoor ice skating rinks and facilities for two weeks in response to multiple COVID-19 clusters.

Maine Amateur Hockey leaders, though, said teams had been practicing for months without any issues. They said the state had not bothered enforcing or educating the hockey community that game-play was not allowed until after the hockey referee case came to light.

”I think the last four months speak for themselves,” Rich Reissfelder, president of Biddeford Ice Arena’s board of directors, said this month.

Keaney, with Maine Amateur Hockey, similarly praised the safety protocols his member associations and rink operators have put in place.

“Quite honestly, what we had been doing has been working,” he said.

Realistically, the state may not have known whether the league was violating guidelines because it doesn’t have the resources to monitor every activity or business for compliance.

And the consequences when people don’t follow guidelines can be far-reaching. Two major outbreaks – one stemming from a wedding in the Millinocket area in August, another from church services in Waldo County – have led to hundreds of cases across the state. In both cases, guidelines were ignored. If that continues, Mills might feel compelled to get even more aggressive on enforcement.

“I think this comes down to personal responsibility a little bit,” said Lessler, the Johns Hopkins public health expert. “If we’re not going to have a lot of regulation and not have the state act as police – and I think most people want that – everyone needs a higher level of personal responsibility.”

Related Headlines


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

filed under: