John K. Byrum Jr.

John K. Byrum Jr.
Principal

  • February 7, 2020: The Virginia State Health Commissioner declared COVID-19 a disease of public health threat.
  • March 12: Via Executive Order No. 51 (EO51), Governor Ralph S. Northam declared a state of emergency due to COVID-19.
  • March 13: By order of March 13, Governor Northam closed K-12 schools from March 16 through, at a minimum, March 27, 2020.
  • March 17: Recognizing high potential for person-to-person communicability as well as lack of a vaccine or effective treatment options at this point, the Governor and State Health Commissioner issued a Declaration of Public Health Emergency (DPHE or Declaration). Included were certain directives applicable to restaurants, fitness centers and theatres.
  • The March 17 Declaration also included farmers’ markets, areas at breweries, wineries, and distilleries that include tasking rooms, public taprooms, and seated areas within these facilities and any comparable retail operations such as convenience stores with foodservice and seating.
  • March 18: The Commissioner of the Virginia Department of Social Services (DSS) ordered all day care facilities to comply with the requirements of the Declaration of Health Emergency.

Penalties for noncompliance include immediate suspension of the facility’s operations permit and civil injunctive relief.  They also include possible criminal penalties.  Local Commonwealth’s Attorneys’ Offices are beginning to advise how they intend to enforce these requirements.

Measures to Combat COVID-19 Applicable to Restaurants, Fitness Centers, Theaters, and Day Care Facilities 

The Health Commissioner’s March 17 DPHE directs that “all restaurants, fitness centers, and theatres are mandated to significantly reduce seating capacity to 10 patrons, or close…”  The Declaration states restaurants are “encouraged to continue carry-out and takeaway options.”

In practice, a number of restaurants have shifted solely to carryout sales, allowing patrons inside the building only on a ‘grab-and-go’ basis. Those with drive-thru or curbside service have limited operations to drive-up patrons.  Rather than attempt to enforce a 10-patron limit, some fitness centers have simply closed for the duration of the public health emergency. Theatres, too, have closed, while studios entertain the possibility of issuing titles, including first-run features, via video-on-demand services.

Regarding daycare facilities, the March 18 DSS order requires facilities to comply with the DPHE 10-patrons-or-fewer-rule. The DSS directive also provides additional guidance—counseling that there should be no more than 10 persons in a classroom at a given time, including staff.

DSS directs that children should be fed in classrooms in compliance with the 10-person rule. It further states recesses should be staggered in groups of 10 or fewer and children should at all times be kept at least 6 feet apart. DSS suggests that parents who are not essential personnel (e.g., healthcare providers, etc.) should stay at home with children to free-up childcare capacity for the children of essential personnel.  However, the enforceability (if any) of these recommendations beyond the DPHE’s mandatory directive to limit gatherings of patrons to 10 or fewer, is unclear.

Potential Penalties for Noncompliance with the Declaration of Public Health Emergency

The March 17 Declaration specifically states that “[o]bservations of 10 or more patrons in a restaurant, fitness center, or theatre may result in immediate operation permit suspension.”  The Declaration also notes the State Health Commissioner can take whatever action he deems necessary, including ordering immediate closure of a restaurant to control the spread of a preventable communicable disease. The Commissioner possesses broad authority to obtain injunctive relief for violation of an order of the Commissioner or the Board of Health. Violation of an injunction or other relief granted under this statute carries civil penalties of up to $10,000 per violation.

Importantly, in addition to these civil remedies, violation of an emergency order issued pursuant to Virginia Code § 35.1-12 (applicable specifically to restaurants, summer camps, or campgrounds) is punishable as a Class 3 misdemeanor, carrying a fine of up to $500.

Violation of an emergency order issued under Code § 32.1-13 (emergency orders issued for suppressing communicable, contagious and infectious diseases) is punishable as Class 1 misdemeanor, carrying a penalty of up to 12 months in jail and/or a penalty of $2,500.

Heed the Warnings

Although suspension of an operations permit, civil penalties, and even closure of a restaurant can be imposed solely upon observation of exceedance of the 10-patron limit, criminal culpability requires a willful violation of DPHE requirements.

This being the case, area Commonwealth Attorneys’ offices have indicated that in implementing the DPHE, they will not seek penalties or otherwise enforce the Declaration unless a restaurant, theatre, fitness center, or daycare facility owner has been warned their facility is in violation and fails or refuses to rectify the violation.

Owners/operators of restaurants, theatres, fitness centers, and daycare facilities should comply immediately—if they have not already done so–with the requirements of the March 17 Declaration and March 18 DSS order and should certainly take heed of any warnings of violation. Grocery stores are deemed essential operations for food distribution and are not impacted by the Declaration.


For more information on enforcement of the declaration of public health emergency:
Contact John Byrum at jbyrum@woodsrogers.com.