Buncombe County issued an updated Stay at Home Order (also called the Superseding Declaration), effective April 9, 2020 at 6:00AM. (HERE)
The County also issued Guidance. (HERE)
Where does the Order apply?
Throughout Buncombe County, including within the municipal limits of the City of Asheville, the Town of Weaverville, the Town of Woodfin, the Town of Black Mountain, the Town of Montreat, and the Town of Biltmore Forest. When in conflict with the statewide orders, the Governor's Executive Order 121 dictates that local orders stricter than the state order would be superseded.
What has changed?
This April 8th Declaration adopts the basic framework of the statewide Executive Order 121, while imposing certain greater restrictions and prohibitions. This should reduce confusion. Buncombe County had originally issued a Stay at Home-Stay Safe Order on March 25, 2020 before the Governor issued his Executive Order 121 on March 27th. Because of conflicting language used in the statewide and the local orders and the fact that the stricter language applied, there were a number of uncertainties which arose. For example, we had previously written articles on the disparate treatment given Residential Relocation and Construction in the local orders and the statewide Executive Order.
The Superceding Declaration continues restrictions on visitation at Long-Term Care settings and extends the restriction on leisure travel stays at hotels and motels, bed and breakfasts, short-term rentals, homestays and campgrounds. It also imposes several new restrictions
- requiring a mandatory quarantine for "All visitors travelling to Buncombe County from outside the state of North Carolina,” who must upon arrival self-quarantine “at their place of residence for 14 days before entering the community.” An exception is made for those travelling for essential purposes;
- defining any business that retools to make ventilators, PPE, or other medical product as an "essential business;" and
- implementing social distancing measures for essential grocery and retail operations.
The Superceding Declaration specifically allows for drive-in or parking lot religious services, where patrons remain inside their vehicle and there is no personal interaction. Weddings and Funerals are also allowed with no more than ten persons including staff and clergy along with social distancing.
The new Declaration also recommends but does not require the use of face covering in public and urges high-risk individuals to “stay in their residence and reduce interaction with others to the greatest extent practical.”
Why draft a new order when there is already a statewide stay at home order?
The original Buncombe County Declaration was scheduled to expire on Thursday, April 9, 2020 at 6:00am. As the Guidance explains, “In general, this new local Order closely aligns Buncombe County guidance with Governor Roy Cooper’s Executive Order No. 121- Stay at Home Order. However, there are some notable exceptions where Buncombe County guidance is more restrictive or more extensive that the Governor’s Order.”
What does the Guidance cover?
The April 8, 2020, Interpretive Guidance is specifically referenced in the Declaration as both accompanying the Declaration and providing additional guidance. It provides examples of essential activities and prohibited activities. It also provides specific guidance for Drive-in Worship Services, Weddings and Funerals, Lawn Care and Landscaping, Auto Sales, Hotels, Motels, Short Term Rentals, Realtors, Legal Services, and Businesses with multiple departments.
What are the new quarantine rules?
All visitors travelling to Buncombe County from outside the state of North Carolina, upon arrival, must quarantine at their place of residence for 14 days before entering the community. The term “visitor” is not defined in the Declaration. Based on the Guidance, this self-quarantine applies to all non-essential persons entering the county from outside the State. This includes all non-essential persons come to Asheville from outside the state whether they are travelling through for a single night, visiting for a week, or coming to their second home. The Guidance specifically applies the visitor's quarantine to someone who is coming from outside the state “to a second home or vacation home of some sort in Buncombe County.” During the self-quarantine, no visits to a grocery store or other essential business is allowed. This quarantine does not apply to visitors travelling to Buncombe County for essential purposes.
What are the new recommendations for essential grocery and retail operations?
All essential grocery and retail operations are expected to implement social distancing measures to the greatest extent possible. Suggested distancing measures include:
- Limiting the number of patrons allowed inside at any time
- Marking 6-foot intervals for checkout lanes and service desks
- Modifying layouts to allow for 6 feet of social distancing
- Implementing single-direction shopping lanes
- Sanitizing with increased frequency
- Screening employees for illness and symptoms of COVID-19 (fever or dry cough) as they report to work
- Requiring any employees who are sick or have symptoms of COVID-19, to include fever or dry cough, to stay home
- Posting signage with social distancing and hygiene guidelines
- All employers are strongly encouraged to have public facing employees wear cloth face coverings
Is Moving an Essential Function?
After earlier confusion, this question is covered in the Guidance issued by the County: "Moving is an essential function. If you haven’t yet scheduled your move, and you can delay it, that is recommended, but if not please ensure you are doing your very best to avoid close contact and sanitizing common touch surfaces.”
In our prior examination of the original Buncombe County Order, we determined that sanction for residential relocation in Buncombe County was unclear and suggested “Residential relocation should only be undertaken where it is essential, necessary, or where it supports the critical infrastructure sectors and the essential workers needed to maintain the services and functions upon which Americans depend.”
Quarantine procedures related to moves are also in affect under the Declaration. ("If you are moving to another county or state, or you are moving to Buncombe from another jurisdiction you need to quarantine yourselves for 2 weeks upon arrival at your new location.") The Guidance imposes a 2-week mandatory quarantine for those who move to away to “another county or state” or into Buncombe “from another jurisdiction.” Based on the Declaration, these restrictions should only apply to individuals “moving to Buncombe from another Country or State.”
Is Landscaping an Essential Business?
Because Buncombe County is adopting the Governor's definitions, Lawn Care and Landscaping services are now defined as essential in Buncombe County. However, landscapers must comply with Public Health guidance on physical distancing and sanitation practices to include: Traveling to and from a jobsite, working on a jobsite, and during lunch or other breaks on a job site.
Are Realtors Essential?
The revised Buncombe Declaration matches the language in the statewide order in which real estate services were deemed essential by definition. This relaxes previous Buncombe County restrictions and allows for full real estate services on the condition that they are complying with CDC guidance and Buncombe County Public Health orders regarding physical distancing, and hygiene and sanitation practices. However, there is little specific guidance for real estate agents from the CDC or Buncombe County Public Health. The National Association of Realtors has published stricter guidelines, but they are only binding on Realtors.
Are Lawyers essential?
Under the statewide order, professional services, such as legal services, are deemed essential by definition. This determination is not altered by the Buncombe County Superceding Declaration. However, the Guidance is inexplicably more restrictive than either Order: “Legal activity in support of essential business and essential functions is inherently essential. For any other legal activity, it is up individual attorney to determine whether a service for a client or potential client is reasonably mandated.”
Are Local Parks and Forests open?
(updated 4/8) All Buncombe County parks and fields were closed on March 17th and remain closed to the public. All City of Asheville parks have been closed since March, including all dog parks, playgrounds and outdoor courts. All city community centers and recreation centers remain closed until further notice. The Town of Black Mountain has closed its recreational facilities, including include the Golf course, town parks, Lakeview Senior Center, and Grey Eagle Arena to the public since March. Weaverville and Woodfin have also closed their parks. Botanical Gardens, Beaver Lake, and the Arboretum have also closed.
All Asheville city greenways and walking trails remain officially open to those who follow recommended guidelines regarding social distancing. However, the parking lot for Hominy Creek Greenway is closed, and other parking lots for greenways at larger parks are likely also closed.
Henderson County Indoor Park Facilities, Park Restrooms, Park Playgrounds, and Tennis and Pickleball Courts are Closed. Henderson County Outdoor Parks remain Open. Fields and shelters are also Open, however no groups of 10 or more are allowed. City of Hendersonville parks and greenway trails currently remain open, provided visitors comply with social distancing requirements described in Henderson County and the state's Stay At Home orders. Playground equipment, pavilions, skate park, and restroom facilities are closed to the public. Flat Rock Village Park at Flat Rock is open from dawn to dusk as are the restrooms. Restrooms are sanitized at least once daily. The pavilion, playground shelter, and playgrounds are closed. The walking trail at Mills River Park is open to the public. The restrooms, playground, dog park, basketball and tennis courts, and picnic shelter are closed until further notice. Fletcher closed its Dog Park and Playgrounds at Bill Moore Community Park and Kate’s Park. The trails at Hickory Nut Gorge are controlled by Conserving Carolina and are closed.
In March the Pisgah and Nantahala National Forests shut down developed campgrounds, several large developed day use areas, visitor centers and Off-Highway Vehicle (OHV) trail systems, picnic pavilions, shooting ranges and all restrooms, including those at trailheads and other recreation sites. Local shuttered areas include Cheoah Bald, Wayah Bald, Max Patch, Roan Mountain/Carvers Gap, Lovers Leap, Osborne Farm (TN), Hampton and Dennis Cove Trailheads (Laurel Falls TN), Cradle of Forestry, Catawba Falls, Lake Powhatan Recreation Area, Looking Glass Falls Recreation Area, North Mills River Recreation Area, Pink Beds Recreation Area, Sliding Rock, Brown Mountain OHV Area, Half of Black Mountain Trailhead, Rice Pinnacle Trailhead - Bent Creek, Ledford Branch Trailhead - Bent Creek, Lower portion of Avery Creek Road (FSR 477) and associated designated roadside campsites, Bent Creek Road, Ivestor Gap (FSR 816) at the Blue Ridge Parkway intersection at Black Balsam, Cheoah Point Beach, Cherokee Lake, Cliffside Lake Day Use Area, Dry Falls, Jackrabbit Mountain Beach, Standing Indian Day Use Area, Wayah Bald, Whiteside Mountain, and Whitewater Falls. All Appalachian Trail Shelters, Access Points and Trailheads are also closed.
The Blue Ridge Parkway road and trails remain open, with all restrooms and portable toilets, visitor centers, campgrounds, picnic areas, and concession operations closed. Certain sections are closed: Cherokee to Soco Gap (MM 469 to MM455) is closed as the Cherokee Reservation is closed to outside visitors, Soco Gap to Balsam Gap (MM 455 to 443) is closed due to snow and ice, and Rockfish Gap to Reids Gap (MM 0 to MM12.7 in Virginia) is closed to support federal, state, and local efforts to slow the spread of the novel coronavirus (COVID-19) and in coordination with closures now in place at Shenandoah National Park.
Many state parks are closed, including Mount Mitchell, Gorges, Lake James, South Mountain, Crowders Mountain, Grandfather Mountain, Mount Jefferson, Elk Knob, New River. Chimney Rock at Chimney Rock State Park is closed except for Eagle Rock and Rumbling Bald accesses.
DuPont State Recreational Forest and Holmes Educational State Forest are closed. Headwaters State Forest in Southern Transylvania County is open without facilities.
All public playground equipment across North Carolina was closed under Executive Order 121. This likely includes playgrounds owned by private organizations and community associations.
Do I need a pass or other documentation to travel on the roads?
Buncombe County is not taking any actions to disrupt transit or block roads, the Superceding Declaration limits persons to essential travel only. At this time, essential personnel and businesses do not need any credentials or passes to be on the roads. However, the bottom line is that if you don’t have an urgent or pressing need to be out, you need stay home.
If I live outside of Buncombe County, how does this affect me?
If you work in Buncombe County, then your business/employer must comply with this order. You are allowed to travel through Buncombe County and conduct essential activities within Buncombe County and to return home. When you are in your home county, you should follow the guidance of your county of residence.
If I live in Buncombe County, but I work in another county. How does this affect me?
Buncombe County does not have the authority to regulate employment activities outside of Buncombe County. While everyone is encouraged to stay home and stay safe, residents of Buncombe County who are employed outside the county may travel to work regardless of the nature of their occupation or whether that would be defined as essential or not under the Buncombe County declaration. When in another county, you should follow the guidance of that county.
Are there potential problems with the new order?
The use of the word "visitor" in the quarantine rules could create confusion. While Guidance Document widely applies the self-quarantine to anyone travelling to Buncombe County from outside the state of North Carolina for non-essential purposes, there are sufficient internal inconsistencies in the Guidance to create some uncertainty.
The Guidance also provides specific required physical distancing and sanitation practices which apply to auto sales and optional distancing and sanitation practices which apply to grocery stores and other essential retail businesses. However, for real estate services there are no specific recommendations and only a reference to generally applicable guidance on physical distancing hygiene practices, and sanitation practices.
Finally, the Guidance document again singles out attorneys, attempting to limit their defined role as an Essential Business and Operation in the statewide order and the Superceding Declaration.
If you have a questions about the STAY AT HOME ORDER or issues affecting your business in this crisis, contact Allen Stahl + Kilbourne
Updated: April 9, 2020
Any statements contained herein do not constitute a formal legal opinion and should not be relied upon as such. These articles are intended for general informational purposes only. Nothing expressed shall be grounds for the creation of an attorney-client relationship. Our attorneys can give legal advice only in the context of an attorney-client relationship after a conflict check, the execution of a representation agreement and a discussion of the specific information and unique issues of your particular circumstances.
The situation surrounding COVID-19/coronavirus is changing constantly; as a result, any discussions that might take place may not necessarily reflect the latest information regarding recently enacted, or pending or proposed legislation or guidance that could override, alter or otherwise affect existing legal analysis.