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Some Metro Detroit communities refusing to enforce Whitmer's lawn care ban

George Hunter
The Detroit News

Amid vocal opposition to Gov. Gretchen Whitmer's response to the coronavirus pandemic, officials in some Metro Detroit communities are refusing to enforce the governor's prohibition on commercial lawn service, insisting local police aren't compelled to uphold orders they say would harm their residents.

Banning commercial lawn service will bring rats, mosquitoes, blight and other problems, officials in at least four Metro Detroit communities have argued since Whitmer on April 9 extended her March 23 stay-at-home directive and added new restrictions, including the lawn service prohibition.

Warren Mayor Jim Fouts said the ban could do more harm than good.

"I'm not going to support giving any citation," Fouts said. "We have a large number of senior citizens, and many of them have special needs. They don't own lawnmowers; they rely on commercial services.

"I called the governor's office last week, and I thought I made a pretty good argument; I said, 'if you do this, we'll end up with weeds instead of grass, and tall weeds will bring rats and mice. I told them it's a bad idea and asked them to rethink the policy, but it looks like they're not going to."

Fouts said he supports the governor's stay-in-place order, "but I can't support banning commercial landscaping. That's the kind of job that can easily be done while maintaining social distancing."

Officials in St. Clair Shores and Clinton Township posted notices to citizens explaining they wouldn't be enforcing the commercial lawn service ban, although the Clinton Township board voted Monday to overturn the township supervisor's notice.

Prior to Whitmer's extension, Roseville officials had posted a notice telling commercial landscapers they would be allowed to operate, but the city rescinded that after the new state restrictions were imposed.

One of the frequently asked questions posted on the state website is: "May landscaping, lawn care, tree service, irrigation, and related outdoor maintenance companies operate under this order?"

The answer: "No, except if the service is necessary to maintain and improve the safety, sanitation, and essential operations of a residence."

"I interpret that as meaning I didn't have to enforce this since you're talking about safety," Fouts said. "It's not safe to have rodents. It's not safe to have blight, which leads to crime."

St. Clair Shores city manager Matthew Coppler posted a notice on the city's website Tuesday making the same argument.

"The St. Clair Shores City Attorney concluded that commercial and non-commercial landscapers are permitted to perform services 'that are necessary to maintain safety, sanitation, and essential operation of residences,' the notice said.

"While a cursory review of the executive order and the city attorney’s opinion may result in the reader questioning whether the two agree, they do when the EO and city attorney’s opinion are viewed through the lens of common sense as to how they work together," the letter said.

"For example, it would be easy to say that a tree service should not be conducting business during this time. However, with the recent windstorm that came through St. Clair Shores, there may be trees on an owner’s property that experienced damage resulting in a limb dangerously dangling above the home.

"What is the homeowner supposed to do? Can they call a tree service to come and take it down before it falls and causes damage to their home? The EO doesn’t explicitly say they can," the letter said.

"But this is clearly a situation that affects the safety, sanitation, and essential operations of a resident. If the tree limb is hanging dangerously over the roof of a home, it is necessary to call a tree company to remove the limb before it causes damage to the house and potential injury to the owner."

Before Whitmer banned commercial lawn service in her stay-at-home extension, a notice to residents was posted on the Roseville police Facebook page and on the city's website stating residents could hire lawn care services without fear of reprisal.

But the city rescinded that after the extension went into effect, city attorney Timothy Tomlinson said. 

"We felt compelled from a legal standpoint that we had to back off our opinion," he said. "I believe we have to follow the governor's order."

Clinton Township supervisor Robert Cannon disagrees.

"I had our attorney research it ... and nowhere does it say local police must enforce that order," he said. "It's not there."

When asked whether municipalities are compelled to enforce the governor's order, Whitmer's spokeswoman, Tiffany Brown, referred questions to Michigan Attorney General spokeswoman Kelly Rossman-McKinney.

Rossman-McKinney provided an April 9 memo that was circulated within her office that states: "Local law enforcement and county prosecutors are authorized to issue civil citations and otherwise enforce the emergency order."

While the memo says police are empowered to enforce the order, it doesn't spell out that they're compelled to uphold it, although Rossman-McKinney said in an email: "A violation of the executive order is a criminal misdemeanor."

"Each day, we rely on our local law enforcement officials to use their sound judgment in enforcing state law," she said. "An executive order is no different. The governor’s orders are based on advice from health officials who indicate that these are important measures to slow the spread of COVID-19.

"We are confident local law enforcement is taking that into account, along with their resources and other policing needs, when making enforcement decisions."

As of Wednesday, Michigan had 28,059 confirmed cases of COVID-19 with 1,921 deaths.

Clinton Township's Cannon last week wrote a letter informing residents: "After reviewing the emergency orders issued by the governor ... Clinton Township has determined it will not seek misdemeanor enforcement from grass cutting operations provided social distancing requirements of six feet of separation, and other conditions are met.

"The township finds that allowing grass to be cut, if social distancing is complied with as outlined in the executive orders, meets the objective of protecting life by reducing allergic and asthma health impacts and the health impact from rodent harborage."

On Monday, the township board voted 4-3 to overrule Cannon's letter, and to "clarify that Clinton Township would enforce the governor's order, but leave it to the professionals to enforce," said trustee Mike Keys, who voted against Cannon.

"The township doesn't have the authority to say an individual order is unenforceable," he said. "With our vote, the board said it recognizes the governor's authority to set rules, and then we leave it up to the police as far as whether they're able to enforce those rules. 

"We can't have individual politicians deciding which orders their community is going to follow. What if an official wakes up one day and says 'I don't want social distancing to continue?' That's unacceptable, and we're not going to put that out in Clinton Township."

Despite the vote, trustee Joe Aragona, who voted with Cannon, and township clerk Kim Meltzer sent a letter Wednesday to police chief Fred Posavetz, asking police to ignore the governor's "petty tyrannical order."

"The decision rests with you," they wrote. "We implore you not to issue $1,000 fines for lawn care companies."

Aragona told The Detroit News: "I think the governor's order has gone way too far. These companies can operate safely if people take personal responsibility and stay six feet away from each other. People are smart enough to figure that out. These companies need to get back to work."

Clinton Township police spokesman Capt. Richard Maierle said his officers will follow the board's direction.

"The board says we have to enforce the governor's orders, but we have to use discretion," he said. "So if we get complaints, we'll use discretion about whether to try to bring people into compliance."

Clinton Township trustee Jenifer "Joie" West, who voted to uphold Whitmer's order, said many of the opposition's fears, like rats and tall grass, aren't immediate concerns.

"I drove through the township the other day, and there's no tall grass yet," she said. "We don't have an April like we did last year, where there was a lot of rain and the grass grew quickly. And rats wouldn't be a problem until much later.

"But the big thing is we need to follow the orders of the governor. She said this is part of the mandate, and we need to follow it," West said. "I don’t see that any community has the authority to override what the governor says."

University of Detroit-Mercy law professor Larry Dubin said there's a significant difference between communities using discretion in enforcing state edicts and outright refusing to uphold them.

"In general, state law governs the municipalities of a state, and state law is supreme," he said.

"But I don't think (Whitmer's order) means local authorities don't have the right to exercise reasonable discretion. If there's a valid concern in a specific situation about a resident's health or safety, then I think there's justification for acting accordingly. 

"That's different than saying, 'we're not going to follow the order' as a blanket statement." 

Cannon said despite what officials might say publicly, he doesn't think police will enforce the governor's ban.

"The (Clinton Township board) voted to uphold the governor's order, but that was really, 'wink wink, we know we really can’t enforce it, but we don’t want to actually say it,'" he said.

"It's ridiculous to ask us to enforce something like that. We’re not the grass police.”

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Twitter: @GeorgeHunter_DN