State Health Officer, State Health Department detail business closures; Gov. Ivey addresses citizens

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List of businesses and services closed under Friday’s order. Image courtesy of Alabama Department of Public Health

MONTGOMERY, Ala. – On Friday, Alabama State Health Officer Scott Harris issued an amended order closing “non-essential” businesses statewide until Apr. 17. Closures will go into effect at 5 p.m. Saturday, March 28.

The order reads as follows:

ORDER OF THE STATE HEALTH OFFICER SUSPENDING CERTAIN PUBLIC GATHERINGS DUE TO RISK OF INFECTION BY COVID-19 

(APPLICABLE STATEWIDE)

AMENDED MARCH 27, 2020 

WHEREAS, Coronavirus Disease 2019 (COVID-19) has been detected in Alabama; and 

WHEREAS, the appearance of COVID-19 in the State poses the potential of widespread exposure to an infectious agent that poses significant risk of substantial harm to a large number of people; and 

WHEREAS, the State Board of Health has designated COVID-19 to be a disease of epidemic potential, a threat to the health and welfare of the public, or otherwise of public health importance; and 

WHEREAS, on March 13, 2020, on recommendation of the State Health Officer, Kay Ivey, Governor of the State of Alabama, declared a state public health emergency exists in the State of Alabama; and 

WHEREAS, on March 16, 2020, the Jefferson County Health Officer, in response to a rapidly growing number of cases of COVID-19 being detected in Jefferson County, issued an order suspending certain public gatherings in that county; and 

WHEREAS, on March 17, 2020, the State Health Officer issued a similar order for counties surrounding Jefferson, including Blount, St. Clair, Shelby, Tuscaloosa, and Walker Counties, and 

WHEREAS, on March 19, 2020, the State Health Officer issued an order, and on March 20, 2020, an amended order, of statewide application suspending certain public gatherings; WHEREAS, further social distancing measures are necessary to be implemented on a statewide basis to prevent the spread of COVID-19; and 

WHEREAS, Ala. Code § 22-2-2(4), authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated; NOW 

THEREFORE, THESE PREMISES CONSIDERED, it is ordered that the following be implemented statewide: 

1. Effective March 28, 2020 at 5:00 P.M., all non-work-related gatherings of 10 persons or more, or non-work related gatherings of any size that cannot maintain a consistent six-foot distance between persons, are prohibited. Employers shall take all reasonable steps to meet these standards for employees and customers. 

2. Effective March 28, 2020 at 5:00 P.M., the following “non-essential” businesses, venues, and activities shall be closed to non-employees or not take place: 

a. Entertainment venues as follows: 

(1) Night clubs 

(2) Bowling alleys 

(3) Arcades 

(4) Concert venues 

(5) Theaters, auditoriums, and performing arts centers 

(6) Tourist attractions (including museums and planetariums) 

(7) Racetracks 

(8) Indoor children’s play areas 

(9) Adult entertainment venues 

(10) Casinos 

(11) Bingo halls 

(12) Venues operated by social clubs 

b. Athletic facilities and activities as follows: 

(1) Fitness centers and commercial gyms 

(2) Spas and public or commercial swimming pools 

(3) Yoga, barre, and spin facilities 

(4) Spectator sports 

(5) Sports that involve interaction with another person of closer than 6 feet 

(6) Activities that require use of shared sporting apparatus and equipment 

(7) Activities on commercial or public playground equipment 

c. Close-contact service providers as follows: 

(1) Barber shops 

(2) Hair salons 

(3) Waxing salons 

(4) Threading salons 

(5) Nail salons and spas 

(6) Body-art facilities and tattoo services 

(7) Tanning salons 

(8) Massage-therapy establishments and massage services 

d. Retail stores as follows: 

(1) Furniture and home-furnishings stores 

(2) Clothing, shoe, and clothing-accessory stores 

(3) Jewelry, luggage, and leather goods stores 

(4) Department stores 

(5) Sporting goods stores 

(6) Book, craft, and music stores 

3. Effective March 19, 2020, at 5:00 P.M., all beaches shall be closed. For purposes of this section, the term “beach” means the sandy shoreline area abutting the Gulf of Mexico, whether privately or publicly owned, including beach access points. 

4. Effective Friday, March 20, 2020, all regular programs at Senior Citizen Centers shall be ended except that Senior Citizen Centers and their partners are urged to assure that their clients continue to receive needed meals via curbside pick-up or delivery. 

5. Effective today, the following shall be closed: 

a. In-person instruction or classes at all schools, public and private, including but not limited to: elementary, secondary, postsecondary, technical, or specialty schools, and colleges and universities. 

(1) This order is not intended to prevent any employers from making continued necessary staffing decisions. Employers are authorized to advise employees to work from home or maintain flexible work schedules. If working from home is not feasible, the employee should practice social distancing (by maintaining consistent six-foot distance between persons) and follow public health guidelines. 

(2) This order shall not apply to daytime special activities programs provided by local boards of education for children, ages 6 through 12 as of March 13, 2020, of First Responders (including EMS and Fire Services) and Licensed Healthcare Providers, and their essential employees, and essential employees of the following categories of employers: State and Local Governments, Law Enforcement, Hospitals, Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities), End Stage Renal Disease Treatment Centers, Pharmacies, and Grocery Stores. In these special activities programs, 12 or more children shall not be allowed in any one room at the same time, and operators of these programs are encouraged to use enhanced sanitation practices consistent with guidance from the Centers for Disease Control and Prevention and the Alabama Department of Public Health. 

b. Facilities providing child day care, including any child day care facility described in Ala. Code § 38-7-2, at which 12 or more children are in a room or other enclosed or separated space at the same time. Center employees are encouraged to use enhanced sanitation and social distancing practices consistent with guidance from the Centers for Disease Control and Prevention and the Alabama Department of Public Health. This Order does not change the Minimum Standards for Day Care promulgated by the Alabama Department of Human Resources, except that 12 or more children shall not be allowed in a room or other enclosed or separated space at the same time. 

6. Effective immediately, all Hospitals and Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities) shall prohibit visitation of all visitors, as defined by the facility, and non-essential health care personnel, except for certain compassionate care situations such as maternity and end-of-life. 

7. Effective March 28, 2020 at 5:00 P.M., all dental, medical, or surgical procedures shall be postponed until further notice, subject to the following exceptions: 

a. Dental, medical, or surgical procedures necessary to treat an emergency medical condition. For purposes of this order, “emergency medical condition” is defined as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected by a person’s licensed medical provider to result in placing the health of the person in serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs. 

b. Dental, medical, or surgical procedures necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment. 

8. Effective March 19, 2020, at 5:00 P.M., all restaurants, bars, breweries, or similar establishments shall not permit on-premises consumption of food or drink. 

a. Such establishments may continue to offer food for take-out or delivery provided the social distancing protocols, including maintaining a consistent six-foot distance between persons, are followed. 

b. Such establishments are strongly encouraged to offer online ordering and curbside pick-up of food. 

c. Hospital food service areas are excluded from this order provided they have their own social distancing plan. 

9. If organizers or sponsors of otherwise suspended events desire, they may submit a request for an exemption from this order. While the State Health Officer is under no obligation to grant such an exemption, it shall be fairly considered based on the following criteria: 

a. Effective measures have been taken to identify those attending the event who may potentially be affected with COVID-19, including but not limited to personal testing for the disease or submission of current medical clearances to the organizer. 

b. Effective measures have been taken to prevent the spread of infection even by those that are infected while not symptomatic, including the provision of anti-infection measures such as proper face masks, personal sanitation measures, and other measures that may be considered proper. The State Health Officer’s discretion under this section includes the discretion to refer exemption requests from Jefferson and Mobile Counties to the respective County Health Officer for those counties for evaluation as described above. 

10. This Order shall remain in full force and effect until 5:00 P.M. on April 17, 2020. Prior to 5:00 P.M. on April 17, 2020, a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order. 

11. This Order supersedes and preempts all orders previously issued by the State Health Officer and Jefferson and Mobile County Health Officers concerning COVID-19 mitigation measures. After the date this amended order is issued, the Jefferson and Mobile County Health Officers are authorized, after approval by the State Health Officer, to implement more stringent measures as local circumstances require. 

What happens to those who violate the order?

After the amended order was issued, State Attorney General Steve Marshall updated his instructions to law enforcement officials across the state. The updated statement reads in part:

The effect of the order and the promulgation of the emergency rule is that the March 27th order is now enforceable under (Alabama Code) Section 22-2-14, which states:

Any person who knowingly violates or fails or refuses to obey or comply with any rule or regulation adopted and promulgated by the State Board of Health of this state shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $25.00 nor more than $500.00 and, if the violation or failure or refusal to obey or comply with such rule or regulation is a continuing one, each day’s violation, or failure or refusal shall constitute a separate offense and shall be punished accordingly.

ALA. CODE § 22-2-14. Given the criminal nature of a violation of Section 22-2 14, prosecutors and law enforcement should be aware of their authority to act as needed to enforce the state health order. While the unprecedented nature of this pandemic and the government’s evolving response seem to demand some restraint related to criminal enforcement of this order, if a violator has been made aware of the state health order and the refusal to comply presents a threat to public health and safety, the penalties of Section 22-2-14 are available as an enforcement tool.

What stays open?

An oddly placed item (found as a subsection under the order to close schools) indicates businesses and services that can remain open: 

This order shall not apply to daytime special activities programs provided by local boards of education for children, ages 6 through 12 as of March 13, 2020, of First Responders (including EMS and Fire Services) and Licensed Healthcare Providers, and their essential employees, and essential employees of the following categories of employers: State and Local Governments, Law Enforcement, Hospitals, Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities), End Stage Renal Disease Treatment Centers, Pharmacies, and Grocery Stores. In these special activities programs, 12 or more children shall not be allowed in any one room at the same time, and operators of these programs are encouraged to use enhanced sanitation practices consistent with guidance from the Centers for Disease Control and Prevention and the Alabama Department of Public Health. 


Businesses and services which can remain open under Friday’s order. Image courtesy of Alabama Department of Public Health

State Health Department issues response to expected questions

The Alabama Department of Public Health issued a list of “frequently asked questions” expected to come up in discussions about the order:

1. May businesses or venues not specifically listed for closure continue their normal operations? For example, are hardware stores or home improvement stores required to close to non-employees? What about veterinary clinics? Dry cleaners? Car dealerships? Etc. Businesses or venues not specifically listed in the order for closure may continue their normal operations, subject to the laws and regulations they must ordinarily follow as well as the other parts of the order. In short, if a business or venue is not on the list, it’s not closed. 

2. Must businesses or venues that may remain open limit the number of customers inside at one time? It depends. The order’s social-distancing rule, in paragraph 1, prohibits “non-work-related gatherings” of 10 persons or more or non-work related gatherings of any size that cannot maintain a consistent 6-foot distance between persons. So, the question is whether the customers are “gathering.” In a large, uncrowded grocery store, for example, where customers may easily walk past one another, it is unlikely that any “gathering” is taking place even if many more than 10 people are inside. On the other hand, a group of 10 people congregating in a confined space over an extended length of time would be more likely to constitute a gathering. 

3. May retail stores ordered to close offer delivery or curbside services? Yes. The order requires certain categories of retail “stores” to be “closed to non-employees.” This language requires the closure of the store building to customers but would not preclude delivery or curbside services if the store complies with the order’s other provisions, such as the social distancing rules. 

4. What about “big box” stores? In other words, must a retail store close if it has some characteristics of a store listed for closure but is not generally considered to fall within one of the specific listed categories? Remember, if a store is not on the list, it’s not closed. So, a “big box” store would not be closed—though it still must comply with the order’s other provisions. 

5. What do I do if I cannot tell whether my store or venue must close? For example, is a mattress store a “furniture” or “home-furnishings store”? Is a sewing-machine store a “craft” store? Is a drive-in theater a “theater? Remember, if a store is not on the list, it’s not closed. But in cases that are truly difficult to answer, a store owner should contact local law enforcement for guidance. The Attorney General has cautioned law enforcement that “the unprecedented nature of this pandemic and the government’s evolving response seem to demand some restraint related to criminal enforcement of this order,” and local law enforcement can obtain guidance from appropriate state authorities in truly difficult cases. 

6. May sporting goods stores and other retail stores that sell firearms and ammunition remain open to customers inside the store? The order specifically lists “sporting goods stores” for closure, so a sporting goods store must close even if it sells firearms and ammunition. Gun shops, on the other hand, are not specifically listed; thus, they may remain open. 

7. If playgrounds are closed, are parks still open otherwise? Is it still okay to exercise outside? Yes, parks are still open, and it is still okay to exercise outside. Just do not gather with more than 10 people or with any number of people if you cannot maintain a consistent 6 feet of separation. 

8. Can physical therapists and chiropractors continue to provide therapy services to patients under the order? Yes. Physical therapists and chiropractors are medical providers subject to the rule. But, like other providers of dental, medical, or surgical procedures, they may provide services that are necessary to treat an emergency medical condition, or are necessary for a patient to avoid serious harm from an underlying condition or disease, or are a necessary part of a patient’s ongoing and active treatment. 

Gov. Ivey speaks

After the press conference announcing the order, Gov. Kay Ivey posted a video message to the citizens of Alabama. In it, she said, in part:

“As governor, I want to take a moment and plead with all of you to please respect all health recommendations and orders, and work with them into your daily lives. The temporary adjustments can be truly lifesaving as we work to flatten the curve of this virus. We’ve all learned the new phrase of ‘social distancing’ because of this virus, and I urge you to take this necessary precaution.

“We will resume our daily lives in the near future, once we defeat this illness. And while your leaders are called on to make important decisions dealing with a virus that we didn’t even know existed three months ago. We’re going to make some mistakes along the way. My hope and prayer is that we will get it right more than we will get it wrong.

“And speaking of prayer, as a person of faith, I certainly believe in the power of prayer. I urge the people of this great state to join me in praying for one another. Instead of getting caught up in what can be, at times, negative news, I ask that you practice encouraging texts or calling to express your concern for one another. As you connect to one another on social media, use good judgement and promote positive messaging, rather than the alternative. Send one another a sermon or devotional that you read or heard, that urges calm, patience and faith. Share a positive story about one of our neighbors who did something thoughtful, even when no one was looking. We can all find some way to share a good deed that can bring a little comfort to others.

“Today, we need to remember the lasting words of President Kennedy, who said, ‘Ask not what your country can do for you; ask what you can do for your country.’ Likewise, we shouldn’t forget President Reagan reminder that ‘There are no constraints on the human mind, no walls around the human spirit, no barriers to our progress except those we ourselves erect.’ Alabamians and Americans have faced many challenges before, and the American spirit and the Alabama resolve has helped us get through those times. Together, I am confident that we will get through this, as well.”

See the State Health Officer’s order at https://www.alabamapublichealth.gov/legal/assets/order-adph-cov-gatherings-032720.pdf.

See the Attorney General’s orders at https://www.alabamaag.gov.

View Gov. Ivey’s video address at https://governor.alabama.gov/newsroom/covid-19/.

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