Fargo City Commission - February 17, 2021 Minutes

Agreeable with a call for a Special Meeting issued by Mayor Mahoney, the Board of City Commissioners of the City of Fargo, North Dakota, convened in a Special Meeting in the City Commission Chambers at City Hall at 12:30 o'clock p.m., Wednesday, February 17, 2021.

The Commissioners present or absent were as shown following:
Present: Gehrig, Preston, Strand, Mahoney.
Absent: Piepkorn
Mayor Mahoney presiding.

Mayoral Mask Mandate Extended through March 22, 2021:
Mayor Mahoney said the mask mandate was issued October 19, 2020 and extended at the January 11, 2021 Regular Meeting until February 18, 2021. Due to the mandate being set to end soon, he requested a Special Meeting following a recommendation from the Fargo Cass Board of Health that the mandate be extended, he said.

Commissioner Preston outlined some of the rationale for extending the mask mandate including: the Board of Health letter of recommendation, schools are in session yet most teachers are not vaccinated, the CDC has clearly stated mandates need to continue, the new variant has been found in North Dakota, surveys of the business community support continuing the mask mandate and the vaccination rates are not where they need to be to achieve herd immunity.

Board of Health Chair Chelsey Matter said discussion at the last Board of Health meeting included the impact of a mask mandate, the correlation between the mandate and decline in active cases and that new variants are being found. She said wearing a mask is a simple effective way to hopefully prevent a resurgence in
COVID-19 cases. A lot has been asked of health care workers over the pandemic, she said, and so many have now been diverted to providing vaccinations

Commissioner Preston moved to extend the mask mandate until March 22, 2021.
Second by Strand.

Commissioner Gehrig said it is not scientific to suggest that the mask mandate is responsible for the decline in the number of COVID cases. North Dakota’s total numbers follow along with what South Dakota’s are, he said, and South Dakota does not have mask mandates. He said the actual curve is the number of people in hospital beds and how many are available, which is very flat. There will always be a reason to continue measures so when will these things be stopped, he asked. He said the CDC has said that wearing two masks is 70% more effective than one, so if that is the science, why not mandate two masks, or three, if two masks are better than one.

Commissioner Gehrig moved to amend the motion to mandate the use of two masks.
The motion died for the lack of a second.

In response to a question from Commissioner Strand asking at what point the mandates would come off or be considered compelling, Ms. Matter said she sees it more in terms of vaccination rates, which is an effective means to achieving immunity goals.

Commissioner Preston said it would be good if even a 50% vaccination rate could be reached.

Fargo Cass Public Health Director Desi Fleming said there is still a presence of active disease in the community and until those fall off the mark, that is another metric that needs to be used. She said this is a big week for vaccinating, 1,600 are scheduled today in Cass County so numbers are increasing; however, mask wearing would continue to be an important tool.

In response to a question from Commissioner Strand about the affects on enforcement for his department, Police Chief David Zibolski said it does take resources. He said they continue to check licensed premises and almost all are in compliance and from a mask perspective, there have not been issues.

Mayor Mahoney said the mask mandate was headed to expire; however, he has received a number of emails and many have come from people who have either had people sick or had a death in their family. He said there is a correlation out there that mask usage reduces the death rate. There is a difference between North Dakota and South Dakota, he said, South Dakota has 97 hospitalized, 2,204 active cases and 1,844 deaths while North Dakota is down to 46 hospitalized, 786 active cases and 1,431 deaths. In Cass County, he said, the death count is down since many died in nursing homes early on and there is also monoclonal therapy available. He said he concurs with the Board of Health that there is not enough vaccine in the community, plus there is a variant here. He said he hopes the low rates continue. Being conservative and on the side of caution and respecting that the Board of Health has asked, he said he will be in favor of extending the mask mandate.

On call of the roll Commissioners Preston, Strand and Mahoney voted aye.
Commissioner Gehrig voted nay.
Absent and not voting: Commissioner Piepkorn.
The motion was declared carried.

Legislative Issues:
Mayor Mahoney said City Attorney Erik Johnson has been offered to give an amendment on HB 1248 and the Mayor would ask the Board’s feelings on this particular bill. He said Commissioner Gehrig gave testimony and now Representative Ben Koppelman is offering a possible solution to the issue due to unintended consequences of how the bill is presently written. There may be an opportunity to fix it, he said, and if the amendment is agreed upon, then the City would no longer oppose. He said Commission action will help Mr. Johnson decide what to do.

Mr. Johnson said HB 1248 has a couple components, one is to add dangerous weapons to restrictions during a State of Emergency. The topic now, he said, is addressing the City of Fargo’s issue that, while firearm sales are permitted throughout the City, those sales are prohibited as a home occupation. He said a clear zoning permit is required to obtain a federal firearm permit. He said to his knowledge, the City of Fargo is the only city that has this kind of home occupation zoning prohibition. He said this change could have an unintended consequence for someone with a firearm retail establishment, something more than a home occupation, could say the zoning laws do not apply to them at all. He would like to propose an amendment to address that unintended consequence to limit it accordingly, he said; however, he has not seen the draft language. He said since the City of Fargo has been opposed to the bill, Representative Koppelman would like the City to withdraw its opposition should the amendment come through. It has not come out of the Political Subdivision Committee yet, he said; however, there is a likelihood for a “do pass” recommendation and possibility it will pass the House. He said if it goes over to the Senate, the request is for the City to withdraw opposition.

Commissioner Preston said she does not see how this solves the issue of extending perhaps to other kinds of City accountabilities or other Ordinances that could be impacted such as the number of customers.

Mr. Johnson said he believes the intended amendment, although he has not seen it, would permit a City to regulate home occupations and cannot isolate the firearm sales and possession as part of the regulation.

Commissioner Preston said the dangerous weapon component is still an issue with this bill and she would assume that is not something the City wants.

Mr. Johnson said that part of the proposal would be a different issue and with direction from the Board it could be negotiated appropriately.

Police Chief Zibolski said the bill is oddly put together to have the two issues on one bill. He said the elimination of the Police Department’s ability to control dangerous weapons at public emergencies and things of that nature could have a bad public safety outcome and he would oppose that portion of the bill.

Mayor Mahoney asked Mr. Johnson to circulate the Amendment to the Commissioners as soon as it becomes available.

Commissioner Gehrig said this is a monster of Fargo’s own creation and the lesson may be if Fargo had followed State laws in the first place, there would not be the situation where other things will be affected. He said perhaps if the City were to fix the problem it created, this problem would go away. He said he supports this wholeheartedly due to the fact that it teaches a lesson not to try to get around State law.

Commissioner Preston said the intent was to address it with all the exceptions; however, unless there is an Amendment to remove all the references to dangerous weapons, it seems the bill is either up or down and she would oppose both sides, and certainly the dangerous weapon side.

Mayor Mahoney said to be clear, this Commission did not pass the original Ordinance on selling guns in homes. He said it only addressed that it would be included in the Land Development Code (LDC) rewrite.

Commissioner Gehrig said while this Commission did not pass the LDC in 2002 or whenever it was, he brought the problem to the Board a year ago and was told Fargo would keep doing what it is doing. He said now it is a lesson learned to follow the law. He said there is a lot of local control; however, when the State says “no city shall” the State supersedes the City. This is not a gun bill, he said, it is about letting people do business out of their home, freedom to use their home the way they are supposed to and about following State law.

Mr. Johnson said Commissioner Gehrig is referring to the City Attorney’s opinion in 2015 or 2016, followed up by an opinion by Green Espel Law Firm this past year that interpreted the law as it existed and both supported the idea that what this law meant did not include restrictions on the City’s ability to zone. He said there is some disagreement about what the State law means in its current form. What he is asking for is guidance for the proposal asking if the Amendment were introduced would the City withdraw its opposition to the zoning portion.

Commissioner Strand said he bristles when the Legislature pre-empts local action. He said he would recommend the Legislature hoghouse it and send it for study.

Mayor Mahoney said during the demonstrations in Fargo there was a question on whether someone could carry a firearm into that area and perhaps the part on dangerous weapons is trying to clarify that.

Commissioner Gehrig said there is another perspective to people in crowds carrying weapons. What about a business owner in the middle of a crowd protecting a business or their home, he asked. He said a plain reading of the current law is that cities shall not prohibit gun sales or ammunition, he supports it and this will not be the end of the battle.

Commissioner Preston moved the City of Fargo continue to oppose HB 1248.

Second by Strand. On call of the roll Commissioners Preston, Strand and Mahoney voted aye.
Commissioner Gehrig voted nay.
Absent and not voting: Commissioner Piepkorn.
The motion was declared carried.

Commissioner Strand moved that the Board adjourn.
Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 1:05 o’clock p.m.