GOV. COOPER TOGGLES THE DIMMER SWITCH: WHAT EXECUTIVE ORDER 169 AND PHASE 3 MEAN FOR YOU
On September 30, 2020, Governor Roy Cooper issued Executive Order 169 (EO169) which will officially move North Carolina into Phase 3 of the COVID-19 State of Emergency that he declared on March 10, 2020 (Executive Order 116). EO 169 is effective on Friday, October 2, 2020 at 5:00pm and runs through October 23, 2020 at 5:00pm. For those just tuning in, Governor Cooper has used the “dimmer switch” analogy to describe his approach to gradually reopen businesses, schools, and other entities in North Carolina. For helpful background, Governor Cooper’s prior COVID-19 executive orders can be found here.
Before diving into the nuts and bolts of EO 169 and other relevant topics, I want to pause here and state what we all already know – COVID-19 is a dangerous disease that kills people. Period. Full stop. Governor Cooper, and all of us, are observing business and other limitations to halt the spread of COVID-19. If the President of the United States and an Appalachian State University student could get sick or die from COVID-19, so can bar and hookah lounge patrons. Please follow all public health advice regarding face masks and social distancing as you go about your daily routine. And, whatever you do, do not go out in public – especially to your favorite sports bar or brewpub – if you are feeling sick with COVID-19-like symptoms (and with any other symptoms for that matter!).
So, you may be asking, “Where have we come from regarding state and local government’s response to business access and restrictions imposed by Governor Cooper’s prior executive orders?” Well, state and local regulators (particularly in western NC) have done a good job balancing enforcement with the practical realities of operating a business and folks’ need to get exercise, food, and social contact. Some helpful examples include the NC ABC Commission’s May 24, 2020 Guidance allowing ABC permittees to temporarily “self-expand” their ABC premises into parking lots and other spaces without getting pre-approval from the NC ABC Commission’s Permitting Section; and the City of Asheville’s relaxed public and private space usage programs which allow local businesses to use private parking lots and City parking spaces without the requirement to go through the normal permitting process. Kudos to NC ABC Commission and the City of Asheville (among other local government entities across the State) for these innovative programs during COVID-19!
EO169 builds on prior executive orders and now allows more businesses to either open or expand their capacity. Those include:
Bars’ outdoor seating areas may reopen, subject to reduced capacity limits (lesser of 100 people or thirty percent (30%) of the facility’s stated outdoor occupancy (or, for spaces without a stated outdoor occupancy, no more than seven (7) guests for every one thousand (1000) square feet of the outdoor area's square footage). Bars without waitstaff must provide an ordering area for guests who may come inside the facility to place orders for alcohol, but the alcohol must be consumed outside.
Music halls, night clubs, lounges, adult entertainment, venues for live performances, arenas with spectators, and theaters, including cigar bars and hookah lounges, (Governor Cooper uses the term “non-bar nite spots” to describe these locations) where guests are seated may reopen, subject to reduced capacity limits for outdoor spaces and to the mass gathering limit (25 guests per facility) for indoor spaces. No alcoholic beverages may be served for on-site consumption in the indoor portion of these facilities. Outdoor capacity is limited to the lesser of 100 people or thirty percent (30%) of the facility's stated outdoor occupancy before reductions under EO169 (or, for spaces without a stated outdoor occupancy, no more than seven (7) guests for every one thousand (1000) square feet of the outdoor area's square footage).
The outdoor areas of amusement parks may reopen, subject to reduced capacity limits and other restrictions.
Movie theaters may reopen, subject to reduced capacity limits and other restrictions.
Meeting spaces in hotels, conference centers, meeting halls, and reception venues may host receptions, meetings, and other functions, subject to reduced capacity limits and other restrictions.
Gaming establishments may reopen, subject to reduced capacity limits.
Very Large Outdoor Facilities with a capacity of more than 10,000 Guests may reopen at 7% of the facility’s total seating capacity, if they meet certain requirements.
Some things remain the same under EO169 as under past executive orders:
Alcohol sales are still required to cease from 11:00 p.m. to 7:00 a.m.
Mass Gathering limit remains at 25 indoors and 50 outdoors.
Indoor seating areas in bars remain closed.
Indoor rides at amusement parks remain closed.
Fitness and exercise facilities remain open, subject to reduced capacity limits and other requirements.
Restaurants remain subject to capacity limits and other requirements for in-person dining.
Personal care businesses such as hair salons, nail salons, barber shops and more remain subject to capacity limits and other requirements.
Museums and aquariums remain open, subject to reduced capacity limits and other requirements.
Face coverings are still required in public when it is not possible to maintain social distancing from non-household members. In Phase 3, this requirement applies to any public place or business, indoor or outdoor.
Here are some take-aways from E0169, and some other observations:
Bars and non-bar night spots can now operate, subject to indoor and outdoor seating and other restrictions more fully described in EO169. Please thoroughly review it to make sure you are familiar with EO169’s particulars.
Patrons can go into the bar to order a drink and to use the bathroom, so long as they observe social distancing and face mask requirements.
Indoor bar amenities, like pool tables, dart boards, and foosball tables, are not authorized.
Outdoor consumption of alcohol = o.k.; indoor consumption of alcohol = not o.k. (unless you are a restaurant following prior rules published in previous executive orders).
Mass gathering limitations are different from indoor and outdoor capacity limitations. In EO169, "Mass Gathering" means an event or convening that brings together more than twenty-five (25) people indoors or more than fifty (50) people outdoors at the same time in a single confined indoor or outdoor space. However, where specific seating allowances apply (as with bars, lounges, etc.), businesses may operate up to that capacity subject to face mask, social distancing, and sanitation requirements.
Restaurants operate under the previous rules published in prior executive orders.
If your establishment does not have an outdoor seating area, check the rules in your local municipality or area before setting it up. Specific rules on electrical outlets, raised platforms, large tents and ADA access may apply that are not listed in EO169.
As with previous executive orders, alcohol service must end at 11pm for all alcohol-serving establishments in the State.
Governor Cooper’s helpful FAQs can also be found here.
For More: Clifton Williams and Derek Allen
Updated: October 2, 2020
