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Baraga County EEO FAQ’s

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Submit a Question to the Prosecutor regarding Governor Whitmer’s Executive Orders

Disclaimer

FREQUENTLY ASKED QUESTIONS ABOUT ENFORCEMENT OF GOVERNOR GRETCHEN WHITMER’S EMERGENCY EXECUTIVE ORDERS IN BARAGA COUNTY

CAUTION

THE FOLLOWING ANSWERS TO FREQUENTLY ASKED QUESTIONS (FAQ) ARE NOT INTENDED TO SERVE AS LEGAL ADVICE FOR ANY PARTICULAR PERSON OR ENTITY. THE ANSWERS TO THE QUESTIONS ON THIS PAGE ARE NOT INTENDED TO GIVE ANYONE ADVANCE NOTICE OF WHAT ACTION THE OFFICE OF THE BARAGA COUNTY PROSECUTING ATTORNEY WILL TAKE IF/AND/OR/WHEN PRESENTED WITH DETAILED FACTS ABOUT EVENTS WHICH OCCURRED IN THIS VENUE. THE SOLE PURPOSE OF THIS FAQ SITE IS TO PROVIDE GUIDANCE FOR CITIZENS IN BARAGA COUNTY TO ASSIST THEM IN UNDERSTANDING AND ADHERING TO THE CONFUSING, ALBEIT TEMPORARY, LAWS ENACTED BY THESE EMERGENCY EXECUTIVE ORDERS.

On March 10, 2020 the first two cases of COVID 19 were identified in the state of Michigan. On that same date the Governor declared a state of emergency and since then has issued no less than 47 (and counting) Emergency Executive Orders (EEO) intended to slow or halt the spread of COVID 19. These EEOs impose unprecedented restrictions on the lives of all Michigan residents and most of the restrictions are misdemeanors punishable by up to 90 days in jail and a fine of up to $500.00. The Michigan DHHS has also issued emergency regulations that impose fines of up to $1,000.00 for each day an EEO violation occurs.

Initially, Attorney General Dana Nessel assured us that her office would handle any and all EEO violations. Unfortunately, in matter of just a few days, she did an about-face and informed us that enforcement of EEO violations was now up to local prosecutors. In Baraga County that means me.

I could easily write page after page analyzing each EEO and giving my interpretation of each of them. But given the sheer number of EEOs, and the sheer number of calls I have already gotten seeking such interpretations, it is far more efficient and less redundant to simply post answers to these question here on the Baraga County website.

BE ADVISED THAT THE ATTORNEY GENERAL HAS AUTHORITY TO ENFORCE STATE LAW THROUGHOUT MICHIGAN AND IF SHE DISAGREES WITH MY DECISION ON ANY PARTICULAR CASE, SHE MAY BRING A PROSECUTION EVEN IF I DECLINE TO DO SO. ACCORDINGLY, PROCEED WITH CAUTION AND/OR CONSULT YOUR OWN ATTORNEY BEFORE MAKING DECISIONS BASED SOLELY ON THIS FAQ SITE.

Business Closures

I cannot and will not give specific legal advice. Nor will I say in advance what action I may take when confronted with a particular police report dealing with a specific fact pattern. Therefore I cannot say what will happen to you if you open your restaurant. On this website I can only offer guidance based on my interpretation of the laws I am being forced to deal with because the Attorney General (AG) has abdicated that responsibility to local prosecutors.

Currently, EEO 2020-69 is relevant to your question. EEO 2020-69 provides:

1. Effective immediately and continuing until May 28, 2020 at 11:59 pm, the following places of public accommodation are closed to ingress, egress, use, and occupancy by members of the public:
     (a) Restaurants, food courts, cafes, coffeehouses, and other places of public accommodation offering food or beverage for on-premises consumption;

EEO 2020-69 further provides an exception:

Places of public accommodation subject to this section are encouraged to offer food and beverage using delivery service, window service, walk-up service, drive-through service, or drive-up service, and must use precautions in doing so to mitigate the potential transmission of COVID-19, including social distancing. In offering food or beverage, a place of public accommodation subject to this section may permit up to five members of the public at one time in the place of public accommodation for the purpose of picking up their food or beverage orders, so long as those individuals are at least six feet apart from one another while on premises.

Thus, any restaurant may offer food to go, as long as proper sanitizing and social distancing techniques are followed. With regard to on premises consumption, that is flatly prohibited by the language of EEO 2020-69. Whether that language can be enforced is an entirely different question.

The 1945 Emergency Powers of the Governor Act (EPGA) gives the Governor power to issue orders which carry the force of law in time of emergency. The 1976 Emergency Management Act (EMA) also gives the Governor broad power to issue such orders. The EMA, however, puts a time restriction of 28 days on any such orders and any extension of time must be authorized by a resolution approved by both houses of the Michigan Legislature. Last week the legislature refused to extend the EEOs and many are claiming that the EEOs are no longer effective. The Governor is claiming her EEOs are still effective, basing her position on the fact that the EEOs were issued under both the EMA and the EPGA (which has no such time limitation).

That issue is headed for court, but regardless of who wins, in order to enforce any of the EEOs I must prove to a jury beyond a reasonable doubt that the violation is “willful”. I am frankly at a loss as to how I can do that when two of the branches of Michigan’s government cannot even agree on the law’s validity.

Once again, common sense needs to prevail. Anyone who thinks COVID 19 is not a real threat only needs to speak to the families of the thousands who have died as a result of contracting this deadly disease. Therefore, even though I may not be able to prove the “willful” element necessary to prosecute an EEO violation, based on the specific fact situation action may still be taken if an individual’s actions endanger the health and safety of others.

FOR EXAMPLE:  Assume a restaurant owner opens up in the face of EEO 2020-69 and takes no action to protect his or her employees or customers, such as disinfecting all surfaces or maintaining social distancing requirements. In my opinion, this constitutes a nuisance which could be brought to court and enjoined, thereby closing the business down. Monetary damages may also be awarded against the business owner if someone actually contracts the virus because of this reckless behavior. Indeed, based upon the specific facts, criminal charges could be brought for intentional acts which spread the disease.

Accordingly, before choosing to open up in the face of EEO 2020-69, any business owner must carefully weigh the potential costs and benefits of doing so regardless of what I may think.

Outdoor Recreation (Click to expand Q & A)

The DNR is a principle department within the executive branch of Michigan government. See, MCL 324.501 et seq.. As such, it has authority to both interpret statutes and to promulgate rules and regulations pursuant to such statutes. See, Administrative Procedures Act (APA) MCL 24.201 et seq.. The head of the DNR is the Director, who serves at the pleasure of the Governor. There is also a natural resources commission whose Chairperson is appointed by the Governor and whose responsibilities include advising the Director. MCL 324.99921.

The current organizational chart of the DNR can be found here:  https://www.michigan.gov/documents/dnr/EXEC_ORG_CHART_PA370_643057_7.pdf

The current members of the natural resources commission can be found here:  https://www.michigan.gov/dnr/0,4570,7-350-79137_79763_79909_83509-26986–,00.html

 

Yes, with proper social distancing techniques.

In my legal opinion, the language in EEO 2020-42 (which rescinded EEO 2020-21) did not prohibit such activity. The language in Paragraph 7 read:

(a) Individuals may leave their home or place of residence, and travel as necessary:

(1) To engage in outdoor physical activity, consistent with remaining at least six feet from people outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility (emphasis added).

Some agencies, like the DNR, had interpreted this language to ban motorized boating, but that debate has been mooted by EEO 2020-59 issued today, April 24, 2020, and effective immediately. The new language in (7)(a)(1) now reads:

(a) Individuals may leave their home or place of residence, and travel as necessary:

(1) To engage in outdoor physical activity, consistent with remaining at least six feet from people outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility (emphasis added).

Accordingly, EEO 2020-59 removes any language that could be construed as a ban on motorized boating, whether for fishing or just cruising on the water.

BE AWARE that EEO 2020-59 still requires that people from different households adhere to the CDC’s recommended social distancing guidelines, especially staying six feet apart.

Yes, with proper social distancing techniques. EEO 2020-42 (which rescinded EEO 2020-21) provides that “all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.” There are many exceptions but even with an exception people must adhere to the social distancing guidelines set forth by the Center for Disease Control (CDC) “including staying six feet away from people from outside the individual’s household to the extent feasible under the circumstances.” Paragraph 7 provides that:

(a) Individuals may leave their home or place of residence, and travel as necessary:

(1) To engage in outdoor physical activity, consistent with remaining at least six feet from people outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility.

In my opinion, fishing is an outdoor physical activity with or without a motor attached to a particular fishing vessel. As you can see from paragraph 7(a)(1), persons from the same household are explicitly permitted by EEO 2020-42 to fish together with or without social distancing.

It is also my opinion that 7(a)(1) also allows persons NOT from the same household to fish together provided they follow CDC social distancing guidelines, especially staying six feet apart.

EXAMPLES: Common sense should prevail here. A father and son from two households who motor out for a day of fishing, who are seated at opposite ends of the boat and who are not sharing drinks or engaging in other risky behavior that could spread the virus, are very unlikely to have a problem with my office. The same holds true for friends from different households enjoying a day fishing from a motorboat.

On the other hand, if the same individuals mentioned above are in a motor boat and seated side-by-side, or are passing around a shared water bottle, or are cramming four or five people into a small boat, or are tying off with several other boats and passing items back and forth, boat to boat, these people ARE likely to have a problem with my office. As I said, common sense and simple safety precautions should help individuals avoid problems in this regard.

BE ADVISED THAT I AM INFORMED, AND DO BELIEVE, THAT THE DNR DISAGREES WITH MY ANSWER TO THIS FAQ. ACCORDINGLY SOMEONE COULD VERY WELL BE TICKETED EVEN IF THEY ARE USING GOOD COMMON SENSE AND SAFETY PRECAUTIONS. IF THAT HAPPENS DO NOT FIGHT OR ARGUE WITH THE DNR OR ANY OTHER LAW ENFORCEMENT OFFICER. THOSE WHO PHYSICALLY RESIST OR OBSTRUCT SUCH OFFICERS WILL BE PROSECUTED FOR THAT OFFENSE, EVEN IF THEY ARE NOT PROSECUTED FOR AN EEO VIOALTION.

Stay at Home

Yes and no. EEO 20-020-59, which rescinds EEO 2020-42, adds new restrictions and lifts some restrictions. Regarding wearing masks, EEO 2020-59 now requires:

¶15.  Effective April 26 at 11:59 pm:

(a)  Any individual medically able to tolerate a face covering must wear a covering over his or her nose and mouth-such as a homemade mask, scarf, bandana, or handkerchief-when in any enclosed public space.

In my opinion this means that individuals who are allowed to leave home, such as critical workers heading to their jobs, or individuals who need to obtain necessary supplies such as medicine or groceries, or individuals leaving home for outdoor recreation, MUST wear a face covering when he or she enters a public building, such as a grocery store or pharmacy. It does not have to be a medical-grade mask, in fact the EEO specifically reserves such masks for medical personnel, first-responders and other critical workers who must interact with the public. It is only required that such coverings go over the nose and mouth.

This requirement does not apply when one is outdoors, in a vehicle with members of his or her own household, or in private spaces such as one’s office, as long as the public does not have access to that office.

Unlike most provisions of this and other EEOs, failure to wear a face covering is not a crime. It is subject, however, to the April 2, 2020 Emergency Order issued by the Director of the DHHS which carries a fine of $1,000.00 for each day the EEO is violated.

Category: Stay at Home

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