CAN LAW ENFORCEMENT ENFORCE EXECUTIVE ORDER 23?

On April 2^nd, 2020, Governor Lee issued Executive Order 23 directing all Tennesseans to Stay Home unless engaging in Essential Activities. The purpose of this order is to limit exposure and spread of COVID-19.

For purposes of this Order, Essential Activity means:

1. Engaging in activities essential to a person’s health and safety or the health and safety of family or household members, persons who are unable or should not leave their home, or pets, including, but not limited to, seeking emergency services, obtaining medical supplies or assistance, obtaining medication, obtaining non-elective medical care or treatment or other similar vital services, or visiting a health care professional;
2. Obtaining necessary services or supplies for persons and their family or household members, persons who are unable or should not leave their home, or pets or delivering those services or supplies to others, including, but not limited to, groceries and food, household consumer products, supplies required to work from home, automobile supplies (including dealers, parts, supplies, repair, and maintenance), and products necessary to maintain the safety, sanitation, and essential operation of residences;
3. Providing, facilitating, or receiving delivery or curbside carry-out delivery of online or telephone orders from businesses or organizations that do not perform or are not necessary for the performance of Essential Activity;
4. Engaging in outdoor activity, provided that persons the Health Guidelines to the greatest extent practicable, including, but not limited to, driving or riding in a vehicle, walking, hiking, running, biking, swimming, kayaking, canoeing, golf, tennis, or other sports or recreational activities that can be performed while maintaining the aforementioned precautions or utilizing public parks and outdoor recreation areas; provided, however, that congregating or playing on playgrounds presents a unique risk for the spread of COVID-19 and is therefore not covered as an Essential Activity;
5. Caring for or visiting a family member, friend, or pet in another household, or transporting or traveling with family members, friends, or pets as allowed by this Order; provided, that the Health Guidelines are followed to the greatest extent practicable;
6. Visiting a place of worship or attending a wedding or funeral; provided, that the Health Guidelines are followed to the greatest extent practicable. However, it is strongly encouraged that the public celebration component of weddings and funerals be postponed or attended only by close family members; or
7. Engaging in Essential Travel, as defined below.
8. For purposes of this Order, Essential Travel means:

• • Travel related to Essential Activity or otherwise permitted by    this Order;
  • Travel related to performing Essential Services;
  • Travel to care for the elderly, minors, dependents, persons with disabilities, or other vulnerable persons;
  • Travel to or from educational institutions for purposes of receiving materials for distance learning, for receiving meals, and any other related services.
  • Travel to and from outside of the State of Tennessee; or
  • Travel required by law, law enforcement, or court order, including to transport children pursuant to a custody agreement.

Many people are asking if this Executive Order is enforceable and if so, what penalties result if it is not adhered to. The short answer is yes, under the emergency powers act, Governor Lee is vested with the authority to issue an order requiring individuals to stay at home. With regard to penalties, Tennessee law provides that any person violating the order commits a Class A misdemeanor. An A misdemeanor conviction is punishable by up to 11 months and 29 days in jail or probation and up to a $2500.00 fine.

Importantly, Governor Lee delivered a letter to law enforcement agencies and city officials across the state simultaneously with the issuance of Executive Order 22. In this letter, Governor Lee directs officials to use judgment and restraint to “first educate and warn your local businesses and establishments in order to provide them all reasonable opportunity to comply. Enforcement measures should be used as a last and final option only if they become necessary due to a refusal to voluntarily comply….”

In other words, non-compliance may result in a criminal charge. Law enforcement is supposed to issue a citation and release you under most circumstances. If, however, the police are able to articulate a likelihood of further non-compliance, failure to appear in court, cannot or will not offer satisfactory evidence of identification, refusal to sign the citation, intoxication causing a danger to self or others law enforcement is permitted to arrest and take individuals into custody.

As of today, Executive Order 23 is scheduled to expire April 14^th, 2020 at 11:59 p.m.  If you have any questions pertaining to this Order or any other legal issues, please call Lowery, Lowery & Cherry, PLLC at 615-444-7222, or fill out our contact form.