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Judge Keeps Injunction Against Delco Health Department Inspections for Suing Municipalities

A Common Pleas judge this week kept his injunction in place preventing the Delaware County Health Department from conducting inspections of restaurants and other facilities in the townships and boroughs that are part of a lawsuit.

Those municipalities–Springfield, Ridley, Upper Chichester, Aston, Tinicum, Darby, Marple, and Middletown—object to the newly-minted department performing inspections in their jurisdictions. They prefer to keep that function local, where they can do it at a fraction of the cost levied by the county.

Also on Wednesday, Judge Spiros Angelos heard testimony from Lower Chichester Township Administrator Joseph Possenti Jr.

Although Lower Chichester is not part of the litigation, it sought clarification from the state Department of Health over keeping inspections local since it has its own health board and conducts its own inspections.

Former acting state Health Secretary Keara Klinepeter wrote Possenti back on April 19, telling him the county and township health departments can co-exist under state law.

“While there exist similar and distinguishable duties, each provides benefits that together can be valuable to Lower Chichester Township,” she wrote.

Delaware County Health Department Director Melissa Lyon testified very briefly that she had seen the letter from the state to Lower Chichester.

Passenti testified there are areas that the township would need help from the county health department, including the COVID pandemic, or a disaster like a tornado or an earthquake.

However, “we’ve been very happy with our own inspection process,” he said. For example, local people know the inspectors.

“We had somebody (from the county) show up at our elementary school and we knew nothing about it,” said Passenti. “A gentleman arrived at Lynwood School unannounced and he wanted to be paid upfront. The school district was concerned. They had no idea who it was.”

Joseph McAlee, a lawyer for the county said, “I think there’s been some confusion. The county health department is not doing anything it is not empowered to do. They have been authorized by law to conduct these inspections.”

James Byrne, attorney for the municipalities, referenced the Lower Chichester letters, and said, “As far as the state authority, the state agrees (with the towns). People are being asked to submit to a double inspection.”

Angelos told the lawyers to file briefs and said he will rule on the case in the future.

In the meantime, Frank Catania, a lawyer for Lower Chichester, told Delaware Valley Journal the town’s Board of Commissioners decided to keep its health department and work with the county to provide various services.

“We’re allowed to co-exist,” said Catania. “So far the county has rebuffed those efforts.”

A letter from county Solicitor William F. Martin to Possenti said the county disagreed with the township’s “interpretation of the law,” that the two health departments can continue to operate.

As to joining the lawsuit, Catania said, “We’re going to wait and see what the judge says.” But if the county continues to balk, “we’ll litigate it.”

But Catania is hopeful an agreement can be worked out. Meanwhile, the judge had not been aware of the letters between Lower Chichester, the state, and the county.

The new county health department, which was given state approval on April 2, is expected to cost some $10 million in its first year, with continuing costs of $8 to $10 million annually. While much of the expense will come from state and federal grants, county taxpayers will pick up about 30 percent of the tab. The county also signed a five-year lease on the 11,235-square-foot Wellness Center in Yeadon, paying more than the originally requested rent. Over the course of the lease, the county will pay some $250,000 more than what the real estate company had sought.

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UPDATE: Delco Towns Ask Court to Block New Health Department Over Inspections

Seven Delaware County municipalities– Springfield, Ridley, Upper Chichester, Aston, Tinicum, Darby Township and Marple—are seeking an injunction to prevent the county’s new health department from taking over the duties of municipal health inspectors.

Municipal officials have been telling Delaware Valley Journal for months about their concerns over what the county department’s takeover of health inspections would have on local businesses as well as municipal revenues.

The complaint said that Delaware County will not meet the targeted January 1, 2022 date for the health department to begin functioning, and an injunction is necessary to ensure the townships can manage their 2022 budgets for health inspection services.

While the local municipalities are not opposed to creating a health department to track diseases, chronic medical conditions, ensure emergency preparedness and pandemic planning, among other functions, the officials from those towns specifically ask that the undetermined timing of the health inspections be halted.

“This is a responsibility that has traditionally fallen to municipalities, who employ health officers and other staff to provide these services,” the township officials said in a statement.

“Municipalities have a fiduciary responsibility to taxpayers to efficiently manage their budgets and how they spend tax dollars,” said James Byrne, an attorney representing Springfield, Ridley, and Aston townships. “Townships cannot effectively manage their budgets with the lack of certainty that exists around their staffing needs and whether they will be able to recoup those costs from fees for the health inspection services they provide. This is about good government and the efficient, responsible use of tax dollars.”

In a September 2021 letter, Delaware County Executive Director Howard Lazarus informed municipalities that the county expected the new health department to begin operations on January 1, 2022. At that time, it would take over health inspections of retail food establishments, food trucks, private wells and on-site septic systems, public pools, and other establishments — inspections currently conducted by municipalities.

The letter also said that if the department was not ready by that date, municipalities should be prepared for the county to assume those duties at any time and to prepare for the impact that the “loss of services” will have on their municipal budgets, the statement said.

Byrne told DVJournal the main issue is the timing because municipalities need to know when inspections might begin in order to fulfill their fiscal responsibilities. Delco’s first Health Department Director, Melissa C. Lyon, CPH, will not start her new job until January 14, he said. Byrne believes the new department would not  open its doors on January 1.

So far, none of the towns have laid off their health inspectors, but it would not surprise him if those inspectors begin to seek other jobs.

“Restaurants will still need to be inspected,” he said. “Who’s going to do that? They’re putting us behind the eight ball.”

County spokeswoman Adrienne Marofsky said that Lazarus “has been in communication with all 49 municipalities in the county regarding the establishment of the County Health Department and the change in process regarding health inspection services. State law requires the county to take over local inspections when it begins operations as an accredited Health Department. Municipalities were made aware of the process several months ago and urged to prepare accordingly. The majority of the 49 municipalities have done so and share the county’s common goal of protecting the health and safety of all residents.”

“Mr. Byrne’s statement that ‘the commonwealth approval process for new county health departments typically takes 2 years to complete while Delaware County indicated it would not initiate the process until December 9, 2021’ is not accurate,” she added.

“The creation of the County Health Department has been a two-year process, which first began days after the three new council members were elected in Nov. 2019. The final step in the process to open a County Health Department was to submit a presentation to the State, which was done on Dec. 9, 2021. The County is awaiting final approval from the state,” Marofsky said. “Delaware County extends its gratitude and appreciation to the individuals, organizations, and community partners who have worked to assist and support the county in launching the County Health Department and support the Health Department’s vision to build healthy and thriving communities.”

In their joint filing in the Delaware County Court of Common Pleas, the townships cite a range of issues related to when the health department will be fully operational. These issues include inadequate staffing, incomplete renovations of the new health department offices, and a recently issued Request for Qualifications for a temporary staffing services agency to fill the void in yet-to-be-hired employees. The filing also notes that in the past, the state approval process for new county health departments has typically taken two years to complete. At the same time, Delaware County indicated it would not initiate the process until December 9, 2021, the release said.

Earlier this year, several local restaurant owners raised concerns about the county’s plan to take away health inspection services from local municipalities. The restauranteurs noted that local municipalities and their health inspectors have a history of being timely and responsive. They expressed concerns that at the county level, restaurants making renovations could be forced to wait months for direction needed to ensure compliance or to schedule needed inspections.

At a press conference in September, Tom Thornton, the owner of McGillicuddy’s said, “Maybe it’s a good idea in theory for down the road, but do I think it should be implemented by January 1? It doesn’t sound like it at all.”

Thornton wondered who was going to pay the county inspectors.

“The county is just looking for a money grab,” he said. “So now is that going to fall on the business owners or the taxpayers? Either way, it stinks. It’s no good for anyone.”

Conor Quinn, owner of Kettle, a café, also spoke at the same press conference.

“Who are you going to call?” Quinn, who is also a Haverford Township commissioner, said that when people call him he will have to refer them to the county instead of handling a problem locally. “That’s not fair to them.”

Byrne, meanwhile, noted that while some townships agree with the restauranteurs and believe that municipalities are best suited to handle the health inspections, the focus of this complaint is to seek an injunction in the short term. He said this is necessary given the significant uncertainty related to when the new county health department will be fully functioning, staffed, and trained in order to provide health inspection services.

“At this stage, the townships’ focus is on obtaining some level of certainty related to their budgets for 2022,” said Byrne. “The county has been unable to provide us with a clear picture of when the department will be operational and when they will be prepared to assume these responsibilities. For the townships to meet their fiduciary obligations, they are asking the court to intervene and provide an injunction. The bottom line is that the townships need certainty when overseeing their budget, and that is severely lacking at this point.”

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New County Health Inspectors Will Add to Taxpayer, Business Costs

Delaware County should allow municipalities to keep their health inspectors. That was the message from two Republicans running for Delaware County Council–Joe Lombardo and Frank Agovino–who held a press conference Monday at J.D. McGillicuddy’s in Havertown with other small business owners.

County officials had announced the county government would take over the health inspections of restaurants and stores from the 49 municipalities and make those inspections a function of the new county health department, which is slated to open in January 2022.

Lombardo, who is also the Clifton Heights mayor, said the proposal for the new health department to take over the function is a “power grab” by Delaware County that would have “catastrophic effects on our bar and restaurant owners.”

It is “something that sounds good on paper but in practice, will not work,” said Lombardo. “And will only make the situation worse.”

It makes more sense to allow municipalities to continue doing the inspections because it keeps bureaucracy to a minimum and provides a swifter turnaround time to business owners trying to open or have something approved, like a catering job, he said. The county, in its proposed regulations, gives itself 30 days to issue a permit, Lombardo noted.

“Why they’re trying to do this is nothing other than to grab the fee,” he said.

Meanwhile, the county will permit the municipalities to have their local inspectors do other tasks, such as checking restaurant grease traps, he said. But the inspectors are paid through those fees the county would take, so that will be more money for each municipality (and local taxpayers) to expend for the inspections without being allowed to charge a fee.

“It hurts the business owner and hurts the community,” said Lombardo. “For me, it’s taking away something we do for our community, for our businesses in our community.” People will no longer be able to call the borough with a problem and get it fixed quickly.

“It’s handcuffing the elected officials in the local municipalities,” said Lombardo.

Agovino said the business owners don’t dispute having a county health department deal with issues such as the COVID-19 pandemic. But they are against the county taking these inspections from the towns.

Lombardo said he sat in on a Zoom conference on the topic with county Councilwoman Monica Taylor. “I don’t think they even know what all they’re going to be doing.”

While the county planned to hire 80 people by January and start the inspections, since then the municipalities have been notified they will not be ready by then.

“You can’t find help,” said Lombardo. “How they thought they were going to hire 80 people by January 1 is beyond me.”

“I don’t know what the rush is,” said Tom Thornton, owner of McGillicuddy’s. “Maybe it’s a good idea in theory for down the road, but do I think it should be implemented by Jan. 1? It doesn’t sound like it at all. As Mr. Lombardo alluded to, it’s just going to create more tax dollars for Haverford Township, if they are not going to be able to charge the fees they charge every year, which vary by the size of your building. Who’s going to pay these people?  The county is just looking for a money grab. At whose expense. At some point, somebody is going to have to pay for the local municipalities for them to pay their employees. So now is that going to fall on the business owners or the taxpayers? Either way, it stinks. It’s  no good for anyone.”

Lombardo added, “We got beat up with the reassessment this year. We’re going to get beat up with this. There’s only so much people can take. People are on fixed incomes. There was an article that came out last week that heating oil and natural gas is going to be up 30 to 50 percent this year in the winter. How much can people take?”

A.J.  Loustau, the owner of Centrella’s Deli, said he was curious to know where the plan is coming from.

“I have a great relationship with the local health department,” he said. “We just went through a remodel. I was on the phone with them often just asking questions about how things need to be set up…they were fantastic. They always have been. I’ve never had an issue…If it ain’t broke why fix it?”

Conor Quinn owner of Kettle, a café, said he agrees with the others.

“Who are you going to call?” Quinn, who is also a Haverford Township commissioner, said that when people call him he will have to refer them to the county instead of handling a problem locally.  “That’s not fair to them.”

Thornton said he goes through Manayunk to a restaurant supply store and noticed during the pandemic that many restaurants there had set up tables for outdoor dining. He brought that idea back and was able to get local approval quickly to help his restaurant stay in business.

“It took one phone call from me to Conor,” said Thornton. “I went to the Board of Commissioners.  If we didn’t have that outdoor dining these doors would be closed and I wouldn’t be standing here today. Things like that, where I needed action sooner than 30 days and it was turned around within 30 days.”

Agovino said the county plans to use federal COVID reimbursement funds to pay for this health inspector program through 2024, but “that’s always a dangerous place when you have one-time money and you’re using it for something that is going to be reoccurring…At the end of the day, it’s going to affect small businesses and taxpayers.”

However, Adrienne Marofsky, a spokeswoman for the county, said the county health department must include an inspection program under state law.

“The state requires the county to take over local inspections under Act 315 in order to be an accredited Health Department,” she said. “Our fees are less than those charged in neighboring counties.”

Meanwhile, the new Health Department is slated to cost $10 million its first year, according to a consultant’s report.