On Friday, November 13, 2020, Virginia Governor Ralph Northam announced updates to Executive Orders 63 and 67, which place additional restrictions on Virginia businesses as well as many kinds of non-business gatherings. One of the top line take-aways from the new Orders is that there is to be more robust enforcement for businesses and individuals who violate these Orders. Under Virginia law, failure to comply with a Governor’s emergency order is a Class 1 misdemeanor, which can carry up to a year in jail and a $2500 fine. Another take away is that many gatherings have been reduced to a maximum of 25 people, though there are exceptions. Here is a look at the realties and practical effects under the new Orders.
What the new Orders say
Face coverings required for patrons and visitors under 5 years old: This lowers the age from 10 to 5, where a child is who is a patron or visitor must wear a mask when entering the following kinds of businesses:
- Restaurants, bars, etc.
- Personal care and personal grooming businesses
- All brick and mortar retail business (both essential and non-essential)
- Entertainment and recreation (racetracks, theaters, museums)
- Public transportation, including stations
- State and local government buildings
- Any indoor space where people share physical proximity (except residences and except to participate in a religious rituals)
Numerous exceptions exist for things like eating, drinking, and using exercise equipment. A complete list of exceptions is under Section D here. Importantly, it does not apply to workplaces that don’t fit one of the categories above (though the Emergency Temporary Standard still applies).
Restaurants, bars, wineries, microbreweries, etc.: This is the biggest change. No alcoholic beverages can be “sold, consumed, or possessed on premises after 10:00 p.m.,” and all “dining and congregations areas” must be closed between the hours of 12:00 a.m. and 5:00 a.m. This extends, to the entire state, restrictions which had previously been in place in a few regions, mostly in the Tidewater region, under a prior Order. These restrictions do not apply to delivery or take-out services.
Fitness and exercise facilities: Gyms have been limited to 75% of the lowest occupancy load on their certificate of occupancy under prior Orders. The new Order additionally requires that no individual class have any more than 25 people in it including instructors. Given the existing requirement to keep ten feet distancing inside of gyms, this new restriction would probably only effect very large class room spaces.
Racetracks and speedways: Total number or patrons is capped at 250.
Recreational Sports: Number of spectators is capped at 25 per field.
Public and private in person gatherings: In another important change, these gatherings are now capped at 25 people. This will effect things like parties, celebrations, and social events. Religious services are exempt from this, so long as they comply with social distancing, require face coverings, and follow a list of other guidelines.
“Any willful violation or refusal, failure, or neglect to comply with this Order…is punishable as a Class 1 misdemeanor. ” This language is found in both Orders. The language in these Orders could makes it difficult to tell whether a “willful violation” (purposeful, intentional) is needed, or whether a person can violate the law by unintentionally “failing” to follow the Orders. We believe that the confusing language may create a defense in any case where the violation of an Order is alleged and there is anything other than a clear intention to violate the Order. If you are charged with a violation of a Governor’s Order, consult with one of our Virginia Criminal Lawyers for specific advice and analysis.
With that said, the areas of emphasis in the new Orders vary depending on the type of business. Essential Businesses must follow the Guidelines for All Business Sectors in addition to specific requirements placed on them in the Orders, or face closure and/or prosecution. Whereas restaurants, bars, salons, gyms, and non-essential brick and mortar business “may continue to operate” so long as they comply with the Guidelines and other specific requirements by the Orders. For all other businesses, the Guidelines “should” be followed as “best practices.” While the language is somewhat softer for restaurants, salons, gyms, and non-essential brick and mortar retail businesses, it is safest to assume that violations of the Orders could trigger closure and criminal liability as well. In addition to criminal liability, businesses can also be fined up to $25,000 per violation. The Virginia Department of Health is given authority to enforce these Orders on businesses and prosecute them when appropriate.
Private gatherings of more than 25 people, which do no fall under one of the exceptions, appear to also be receiving special emphasis for enforcement. The Orders appear to authorize any law enforcement agency to charge individuals who participate in public or even private gatherings of this kind with a crime.
Disclaimer: This blog is in the nature of general commentary on the subject it addresses and is not intended as legal advice for your situation.