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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

Yes and Yes.

The current status of the EEOs can only be described as absurdly confusing. There is, at least temporarily, no issue surrounding the legality of the EEOs, the  Michigan Court of Claims has recently upheld the Governor’s power to issue such orders past May 1, 2020 (although that ruling is being appealed to the Michigan Supreme Court). Nonetheless, we are now up to 99 EEOs related to COVID 19, many of which modify, repeal and replace former EEOs. The relevant provisions regarding opening your campground are found in EEO 2020-96, which itself repeals EEO 2020-17, 2020-34 and 2020-92 (which was issued only 4 days earlier). EEO 2020-96 divides the state into different “regions” for purposes of resuming certain business activities. Baraga County is located in Region 8.

As to Region 8, in my opinion you are allowed to open. I will forego a lengthy legal analysis of the EEOs which inform my opinion in this regard because it would require too many cross-references to multiple EEO provisions in multiple EEOs. Instead I will note that paragraphs 8(a) and 11(e) of EEO 2020-96 permit people to travel for outdoor recreational activities including boating and camping as well as allowing workers to resume such work. There are guidelines, to be followed which are set forth in EEO 2020-97, paragraph 2, which by now are familiar to everyone in the state of Michigan. These include enhanced cleaning and sanitizing requirements,  prohibiting gatherings where people cannot stay at least 6 feet apart, limiting inter-personal contact with patrons and workers and maintaining 6 feet social distancing, require, and provide for employees, personal protection gear such as face masks, gloves and other gear appropriate to the activity being conducted. All of the EEOs can be found at the following link: http://www.legislature.mi.gov/(S(au0kwd1e50qr541zxcttwpxz))/mileg.aspx?page=ExecutiveOrders

I know this is confusing, Prosecutors statewide are literally scratching their heads over what is legal and what is not. In my opinion, common sense should control. The purpose behind the EEOs is to slow or stop the spread of COVID 19. Using good social distancing practices and wearing protective gear which is appropriate to what you are doing is the very best way to do this. The following link will take you to the CDC website and some good, practical advise on how to keep yourself and those you encounter safe and virus free: https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html

Stay Healthy!

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.

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