Who has the authority to close restaurants and bars in South Dakota? State and local leaders point at each other

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SIOUX FALLS, S.D. (KELO) — 43 of the nation’s governors or state health departments have instituted some sort of ban on dining-in on restaurants or bars, South Dakota is not one of those.

On Sunday, Gov. Kristi Noem (R-SD) said the decision to do that was not within her powers and said it would be up to local leaders.

“I told them exactly what I’m going to tell you right now, is that I can stand up as Governor and I can give a strong speech telling businesses to shut down, but I don’t have the authority to enforce that,” Noem said. “That enforcement and those tools are at the local level.”

The mayor of South Dakota’s largest city disagreed.

“It’s our understanding that within state law there are certain emergency privileges that a governor can enact,” TenHaken said in an interview with KELOLAND News.

TenHaken posted a photo on Twitter over the weekend showing two bars with packed parking lots, telling businesses and patrons to listen to the experts.

“My powers are somewhat limited in an emergency declaration,” TenHaken said.

The experts, as TenHaken said, believe social distancing and not having people crowd in places will be key to “flatten the curve” of the COVID-19 pandemic. The nation’s top infectious disease doctor has said he’d like stronger action.

“I would like to see a dramatic diminution of the personal interaction that we see in restaurants and in bars. Whatever it takes to do that, that’s what I’d like to see,” Dr. Anthony Fauci said last week on CNN.

While there hasn’t been federal action on this, most states complied with the advice using executive orders.

“In most states, it does come down kind of as a statewide mandate,” TenHaken said. “Our preference is that that would happen because that would allow us not to do city by city, county by county. If Sioux Falls is shut down, they can go to Harrisburg or they can go to Brandon.”

In a Sunday morning media briefing, Noem said she couldn’t use an executive order to do that.

“An executive order is not an option at that point, we could maybe do emergency statute, but I’d have my attorneys looking at that because those right now lie at the local level with city governments and county governments, not with the governor’s office,” Noem said.

According to South Dakota Codified Law, there appear to be certain authorities given to the governor in times of disaster, terrorist attack or emergency, including an epidemic. One of those is to suspend the rules of any state agency.

A second power controls the occupancy of premises within an emergency area.

“I can certainly give directives as governor, but when I look at the statutes and powers given to me as governor, the actual enforcement of that is very difficult for a governor,” Noem said. “So, I have told them that they have the tools at their disposal to do that.”

Noem said TenHaken and other large city mayors in South Dakota know this.

On Sunday, the state announced seven new cases of COVID-19, six of those in Beadle County. Noem said she wanted to see action on restaurants from local leaders there.

“I am going to have a harsher message for the county of Beadle, for Huron specifically,” Noem said.

Beadle County and the City of Huron did take action by ordering all restaurants and bars to shut down before Monday. Drive-thrus, carryout and delivery will still be allowed. The two government bodies also shut down entertainment venues, but grocery stores, convenience stores.

Rapid City announced it will have a special city council meeting Sunday night to close restaurants and bars until April 8.

In Sioux Falls, TenHaken said, right now those actions may not be needed, according to his conversations over the weekend with Sanford and Avera Health.

“The next 48 hours are very important for us,” TenHaken said as the city waits for more data and results of the hundreds of pending tests at the state health lab and in commercial labs.

While it’s not in his powers, TenHaken said his administration is getting creative in the event Noem doesn’t act.

“We also have mechanisms our Board of Health on a city level that can do that and so while we prefer that came down from the state, if it’s not going to, we do have a trigger can use within city ordinance, that our Board of Health can make that recommendation of mandated closures,” he said.

The city Board of Health is meeting on Tuesday to look at its powers and possibly make a decision.

A few states like Nebraska are issuing the bans on a county-by-county basis, but controlled at the state level.

Most other states not banning restaurants, have left it up to local control. There, cities are instituting their own bans, like in Atlanta or Boise, Idaho. Virginia has instituted a 10-person limit to restaurants.

Noem said she has a team going through statutes to further evaluate.

Later on Sunday, Noem said in a Facebook Live explained the balance of business and public health. She said the Department of Health models show the pandemic peaking in possibly May or June, and will continue through the summer. Noem cautioned, however, it’s hard to predict a virus.

She also said she will use her authority if needed.

TenHaken also took to Facebook to address these question:

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