Governor’s Executive Order: Virginia Law

Under Virginia law, a governor has the authority to declare a state of emergency and to create and enforce laws to effectuate provisions safeguarding public health threats.

Under Virginia law, a governor has the authority to declare a state of emergency and to create and enforce laws to effectuate provisions safeguarding public health threats. It is a Class 1 misdemeanor to violate the Governor’s executive order, punishable by up to one year in jail and a $2500 fine. And, it can be punished by closure of your business if the business is supervised by the Health Commissioner (restaurant, theater, bar, etc.).

As of March 30, 2020, the Governor gave police the authority to punish disobedience of his Executive Order through June 10, 2020.

Stay At Home Order

On March 30, and pursuant to Va. Law § 44-146.17, Governor Ralph Northam ordered that violation of the following prohibitions will be punished as a Class 1 misdemeanor criminal offense:

• All public and private in-person gatherings of more than ten individuals are prohibited. This includes parties, celebrations, religious, or other social events, whether they occur indoor or outdoor.
• Institutions of higher education shall cease all in-person classes and instruction,
  and cancel all gatherings of more than ten individuals.
• Effective April 1, 2020 at 11:59 p.m., cessation of all reservations for overnight stays of less than 14 nights at all privately-owned campgrounds, as defined in § 35.1-1 of the Code of Virginia.
• Closure of all public beaches as defined in § 10.1-705 of the Code of Virginia for all activity, except exercising and fishing. Social distancing requirements must be followed.

The substance of the Stay At Home Order is: All individuals in Virginia shall remain at their place of residence, except as provided below by this Order and Executive Order 53. To the extent individuals use shared or outdoor spaces, whether on land or on water, they must at all times maintain social distancing of at least six feet from any other person, with the exception of family or household members or caretakers. Individuals may leave their residences for the purpose of:

a. Obtaining food, beverages, goods, or services as permitted in Executive Order 53;
b. Seeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services;
c. Taking care of other individuals, animals, or visiting the home of a family member;
d. Traveling required by court order or to facilitate child custody, visitation, or child care;
e. Engaging in outdoor activity, including exercise, provided individuals comply with social distancing requirements;
f. Traveling to and from one’s residence, place of worship, or work;
g. Traveling to and from an educational institution;
h. Volunteering with organizations that provide charitable or social services; and
i. Leaving one’s residence due to a reasonable fear for health or safety, at the direction of law enforcement, or at the direction of another government agency.

While the Governor did not specify a penalty for violation of the main portion of the Stay At Home Order, Virginia law nonetheless guides the order. Under Virginia law, violation of his order is a Class 1 misdemeanor.

Order for 10-person Limit or Closure of Non-essential Businesses

On March 23, and pursuant to Va. Law § 44-146.17, Governor Ralph Northam ordered that due to the coronavirus pandemic, non-essential businesses must limit all in-person shopping to no more than 10 customers per brick-and-mortar establishment. “If any such business cannot adhere to the 10 patron limit with proper social distancing requirements, it must close.” Social distancing is defined by the Governor as maintaining a physical distance of at least six feet from any other person at all times, with the exception of family or household members or caretakers. This order is now in effect through June 10, 2020.

Penalty for Violation: Class 1 Misdemeanor, Up To 1 Year in Jail

Under the Virginia law that authorized the governor to create laws in emergencies, the penalty is declared as a Class 1 misdemeanor offense. The maximum penalty for violating Governor Northam’s order is up to 12 months in jail and a $2,500.00 fine. Police officers can thus arrest violators of Northam’s order.

The governor has nonetheless asked police to avoid arrests, when possible, and find alternatives to putting people in jail. This is effectuated in Virginia via summons to appear in court. A summons is equivalent to an arrest and is a release on your promise to appear in court. You may be fingerprinted later upon conviction in court, if you are found guilty.

Business Closure & Another Class 1 Misdemeanor for Owners of Restaurants, Fitness Centers, And Theaters

Closure is required for “all dining and congregation areas in restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets.” Only carry out and delivery food services are permitted. All recreational and entertainment businesses have to close.

Under Va. Law § 35.1-10, restaurants, fitness centers, and theaters who willfully violate or refuse, fail, or neglect to comply with an order of a Board or Commissioner may be immediately closed by the Health Commissioner.

And, Va Law § 32.1-27 punishes “any person willfully violating or refusing, failing or neglecting to comply with any regulation or order of the Board or Commissioner” with a Class 1 misdemeanor offense. This is the same penalty as the Executive Order violation, up to 1 year in jail and a $2,500.00 fine. Yes, both charges can be brought against an owner or manger or noncompliant employee of restaurants, fitness centers, or theaters .

Your attorney may be able to argue that a conviction can only be appropriate under one charge, or that the evidence against you is insufficient as a matter of law, or may make another appropriate legal argument.

Va Law § 44-146.17 – Powers and duties of Governor.

The Governor shall have, in addition to his powers hereinafter or elsewhere prescribed by law, the following powers and duties:

(1) To proclaim and publish such rules and regulations and to issue such orders as may, in his judgment, be necessary to accomplish the purposes of this chapter including, but not limited to such measures as are in his judgment required to control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, materials, goods, services and resources under any state or federal emergency services programs.

He may adopt and implement the Commonwealth of Virginia Emergency Operations Plan, which provides for state-level emergency operations in response to any type of disaster or large-scale emergency affecting Virginia and that provides the needed framework within which more detailed emergency plans and procedures can be developed and maintained by state agencies, local governments and other organizations.

He may direct and compel evacuation of all or part of the populace from any stricken or threatened area if this action is deemed necessary for the preservation of life, implement emergency mitigation, preparedness, response or recovery actions; prescribe routes, modes of transportation and destination in connection with evacuation; and control ingress and egress at an emergency area, including the movement of persons within the area and the occupancy of premises therein.

Executive orders, to include those declaring a state of emergency and directing evacuation, shall have the force and effect of law and the violation thereof shall be punishable as a Class 1 misdemeanor in every case where the executive order declares that its violation shall have such force and effect.

Such executive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1.

Except as to emergency plans issued to prescribe actions to be taken in the event of disasters and emergencies, no rule, regulation, or order issued under this section shall have any effect beyond June 30 next following the next adjournment of the regular session of the General Assembly but the same or a similar rule, regulation, or order may thereafter be issued again if not contrary to law;

(2) To appoint a State Coordinator of Emergency Management and authorize the appointment or employment of other personnel as is necessary to carry out the provisions of this chapter, and to remove, in his discretion, any and all persons serving hereunder;

(3) To procure supplies and equipment, to institute training and public information programs relative to emergency management and to take other preparatory steps including the partial or full mobilization of emergency management organizations in advance of actual disaster, to insure the furnishing of adequately trained and equipped forces in time of need;

(4) To make such studies and surveys of industries, resources, and facilities in the Commonwealth as may be necessary to ascertain the capabilities of the Commonwealth and to plan for the most efficient emergency use thereof;

(5) On behalf of the Commonwealth enter into mutual aid arrangements with other states and to coordinate mutual aid plans between political subdivisions of the Commonwealth. After a state of emergency is declared in another state and the Governor receives a written request for assistance from the executive authority of that state, the Governor may authorize the use in the other state of personnel, equipment, supplies, and materials of the Commonwealth, or of a political subdivision, with the consent of the chief executive officer or governing body of the political subdivision;

(6) To delegate any administrative authority vested in him under this chapter, and to provide for the further delegation of any such authority, as needed;

(7) Whenever, in the opinion of the Governor, the safety and welfare of the people of the Commonwealth require the exercise of emergency measures due to a threatened or actual disaster, he may declare a state of emergency to exist;

(8) To request a major disaster declaration from the President, thereby certifying the need for federal disaster assistance and ensuring the expenditure of a reasonable amount of funds of the Commonwealth, its local governments, or other agencies for alleviating the damage, loss, hardship, or suffering resulting from the disaster;

(9) To provide incident command system guidelines for state agencies and local emergency response organizations; and

(10) Whenever, in the opinion of the Governor or his designee, an employee of a state or local public safety agency responding to a disaster has suffered an extreme personal or family hardship in the affected area, such as the destruction of a personal residence or the existence of living conditions that imperil the health and safety of an immediate family member of the employee, the Governor may direct the Comptroller of the Commonwealth to issue warrants not to exceed $2,500 per month, for up to three calendar months, to the employee to assist the employee with the hardship.

Va Law § 35.1-10 – Measures to prevent transmission of disease.