Forced Business Closures: Executive Orders by the Governor Closing Private Businesses
| Publication year | 2020 |
FORCED BUSINESS CLOSURES: Executive Orders by the Governor Closing Private Businesses
Baylee A. Culverhouse
Georgia State University College of Law, bculverhouse1@student.gsu.edu
Alexa R. Martin
Georgia State University College of Law, amartin105@student.gsu.edu
Code Sections: O.C.G.A. §§ 38-3-3, -51
Executive Orders: Ga. Exec. Order Nos. 03.14.20.01; 03.16.20.01; 03.23.20.01; 03.26.20.02; 04.01.20.01; 04.02.20.01; 04.08.20.04; 04.23.20.02; 04.27.20.01; 05.12.20.02; 05.21.20.01; 05.28.20.02; 06.11.20.01
Effective Dates: March 14, 2020; March 16, 2020; March 23, 2020; March 26, 2020; April 1, 2020; April 2, 2020; April 3, 2020; April 8, 2020; April 23, 2020; April 27, 2020; April 30, 2020; May 15, 2020; May 21, 2020; May 28, 2020; June 11, 2020
Summary: Governor Brian Kemp (R) issued Executive Orders in response to the COVID-19 pandemic that required businesses to close in an effort to limit the spread of the virus. Business owners often challenged those forced business closures as unconstitutional or as exceeding the State's police power, and those challenges were met with varying degrees of success.
Introduction
In December of 2019, Wuhan, China, reported a "cluster of novel human pneumonia cases," in which patients experienced fever, dry cough, and shortness of breath.1 The press initially termed the phenomenon "Wuhan pneumonia" due to the area of origin and the
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symptomology of the disease, but whole-genome sequencing revealed the "causative agent" behind these symptoms was actually a novel coronavirus.2 Sometimes able to jump from animals to humans, coronaviruses include "a large family of viruses that usually cause mild to moderate upper-respiratory tract illnesses, like the common cold."3 Officially designated COVID-19 by the World Health Organization (WHO) in February 2020, the virus swept through Asian and European countries—quickly spreading worldwide and ultimately reaching the United States in January 2020.4 On March 11, 2020, the WHO declared COVID-19 a "pandemic"—the first one ever to be caused by a coronavirus.5
Background
First Wave of Closures
After COVID-19 cases were reported in Georgia in early March, Governor Brian Kemp (R) declared a Public Health State of Emergency on March 14, 2020.6 This declaration made various
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"legal and operational resources available to respond to an emergency" and gave the governor a wide range of powers.7 Under Code section 38-3-51, these powers include the ability "[t]o seize, take for temporary use, or condemn property for the protection of the public" and "[t]o perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population."8 Pursuant to these powers, Governor Kemp issued the first wave of Executive Orders closing schools and businesses in mid-to-late March.
Executive Order 03.16.20.01 shuttered all public elementary, secondary, and post-secondary schools from March 18, 2020, until March 31, 2020.9 Justified as a "necessary and appropriate action to protect the health, safety, and welfare of Georgia's residents and visitors to help control the spread of COVID-19 throughout [the] state," issuance of this Order drew on powers given to the Governor by subsection (d)(1) of Code section 38-3-51.10
Issued on March 23, 2020, Executive Order 03.23.20.01 closed all bars and nightclubs for fourteen days pursuant to the Governor's power "to perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population."11 The Order also mandated that businesses and other establishments could not allow more than ten people in a single location unless people could remain six feet
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apart at all times.12 Lastly, this Order vested the power to close non-compliant businesses and other establishments in the Georgia Department of Public Health (DPH) and also provided that the Commissioner of the Department of Public Safety would allocate additional resources to aid in the enforcement of the Order.13
On March 26, 2020, Governor Kemp issued Executive Order 03.26.20.02, which extended Executive Order 03.16.20.01 and closed all public elementary, secondary, and post-secondary schools until April 24, 2020, to stop the spread of COVID-19.14
Second Wave of Closures
As more information became available about the severity of the virus, April saw a trend of stricter, more aggressive executive orders coming from the Governor's Office. Issued on April 1, 2020, Executive Order 04.01.20.01 extended all school closures mandated by Executive Order 03.26.20.02 through the end of the 2019-20 academic year.15
One day later, the Governor's Office issued Executive Order 04.02.20.01, the most comprehensive Order, instructing "residents to shelter in place unless they [were] conducting 'essential services,' either traveling to and from jobs[,] or taking part in other exceptions."16 As defined by the Order, "essential services" included obtaining necessary supplies and services (such as food, medication, or equipment to work from home), seeking medical care or emergency services, and engaging in outdoor exercise activities so long as participants maintained at least six feet of distance between each person.17
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Certain businesses were treated differently than others under the Order. For example, the Order mandated that all gyms, fitness centers, bowling alleys, theaters, live performance venues, amusement parks, tattoo parlors, hair salons, massage parlors, bars, and nightclubs "cease in-person operations" entirely and remain "close[d] to the public" throughout the duration of the Order.18 Restaurants and private social clubs could remain open, but they were forced to cease dine-in services in lieu of takeout, curbside pick-up, or delivery services.19
Businesses and other similar establishments engaging in "minimum basic operations" could continue to operate but were limited to a capacity of ten people unless all employees could maintain a distance of six feet.20 Further, these businesses had to comply with a set of prescribed guidelines, such as providing disinfectants for workers, screening workers for COVID-19 symptoms, and providing personal protective equipment as available and appropriate.21
The Order contained an exception for businesses or entities defined as "critical infrastructure" by the U.S. Department of Homeland Security.22 Businesses deemed "critical" could continue in-person operations, as long as they implemented measures to "mitigate the exposure and spread of COVID-19" among the workforce.23 Unlike the specific set of provisions mandated for businesses engaging in minimum basic operations, critical businesses were encouraged—but not forced—to implement the safety measures described in the Order.24 Shortly after Executive Order 04.02.20.01
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was issued, the Governor issued Executive Order 04.08.20.04, which suspended all short-term vacation rentals until May 1, 2020.25
Reopening Phase
On April 23, 2020, Governor Kemp attracted national attention when he issued Executive Order 04.23.20.02, which reopened some businesses and ended the strict shelter in place.26 The Order first urged citizens to vigilantly observe public health precautions, directing all people to wear face coverings and engage in social distancing.27 It also ordered elderly and immunocompromised people to continue sheltering in place within their homes.28 The Order prohibited businesses from allowing more than ten people at a single location if, to be present, people were required to stand or be seated within six feet of any other person.29
The Order allowed dine-in restaurants to reopen in a very limited capacity, restricting them to no more than ten patrons within 500 square feet of public space.30 Additionally, dine-in restaurants were required to follow a list of thirty-nine precautions listed in the Order.31 The Order also allowed non-essential businesses, gyms and fitness centers, salon and body art studios, indoor movie theaters, and bowling alleys to reopen as long as they followed a list of specified precautions.32 Not all businesses were permitted to reopen, however;
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the Order mandated public swimming pools and amusement parks remain closed until May 13, 2020.33
Over the next few weeks, Governor Kemp released several Executive Orders to provide additional guidance to businesses that were reopening.34 On June 1, 2020, bars and nightclubs were permitted to reopen if they implemented thirty-nine mandatory measures.35 Even with the wave of business openings, live performance venues remained closed based on the reasoning that it was in the best interest of public health.36 As COVID-19 restrictions eased, restaurant owners remained uncertain whether customers would feel comfortable sitting two feet from the table next to them or whether they would want to remain six feet apart.37
Analysis
Are These Forced Business Closures Constitutional?
Other state governors who issued similar Executive Orders shuttering businesses in response to COVID-19 experienced legal backlash from business owners.38 Specifically, three common constitutional challenges to similar state Executive Orders emerged from business owners. First, business owners argued that forced business closures exceeded the state's police power.39 Second,
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business owners argued that these Executive Orders violated their substantive and procedural due process rights under Fourteenth Amendment.40 Lastly, some business owners argued that shuttering businesses constituted an impermissible "taking" under the Takings Clause of the Fifth Amendment, incorporated against the states through the Fourteenth Amendment.41 The following Sections analyze these various claims in the COVID-19 context.
The Police Power
States have...
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