In Virginia – Is Your Business “Essential” or “Not? A Deep Dive With Our Guidance

Howard K. KurmanPrincipal, Offit│Kurman

Practice Group: Business Law & Transactions

Virginia Imposes Tougher Restrictions On “Non-Essential” Business Operations

On Monday, March 30, Virginia Governor Ralph Northam issued Executive Order 55, which criminalizes persons leaving their residences for purposes of going to most places that are not considered an “essential retail business,” as outlined in Executive Order 53, which was announced on March 24. The restrictions imposed by the Governor are significantly more restrictive than the earlier ones announced at the beginning of the COVID-19 outbreak.

These Executive Orders prohibit all public and private in person gatherings of 10 or more people.

Facilities providing child-care services may remain open, subject to adherence to guidance issued by the Commonwealth, including group size limitation of 10.

Executive Order 55 is effective March 30, 2020 and will remain in effect  until June 10, 2020. Earlier restrictions announced by the Governor in Executive Order 53 took effect on midnight Tuesday, March 24.

Virginia’s restrictions include closure of all public access to “recreational and entertainment” businesses, including:

  • Theaters, performing arts centers, concert venues, museums, and other indoor entertainment centers;
  • Fitness centers, gymnasiums, recreation centers, indoor sports facilities, and indoor exercise facilities;
  • Beauty salons, barbershops, spas, massage parlors, tanning salons, tattoo shops, and any other location where personal care or personal grooming services are performed that would not allow compliance with social distancing guidelines to remain six feet apart;
  • Racetracks and historic horse racing facilities; and
  • Bowling alleys, skating rinks, arcades, amusement parks, trampoline parks, fairs, arts and craft facilities, aquariums, zoos, escape rooms, indoor shooting ranges, public and private social clubs, and all other places of indoor public amusement.

The Virginia Governor’s Executive Order states that “essential retail businesses” may remain open during their normal business hours. For this purpose, the Order defines such “essential retail businesses” to be:

  • Grocery stores, pharmacies, and other retailers that sell food and beverage products or pharmacy products, including dollar stores, and department stores with grocery or pharmacy operations;
  • Medical, laboratory, and vision supply retailers;
  • Electronic retailers that sell or service cell phones, computers, tablets, and other communications technology;
  • Automotive parts, accessories, and tire retailers as well as automotive repair facilities;
  • Home improvement, hardware, building material, and building supply retailers;
  • Lawn and garden equipment retailers;
  • Beer, wine, and liquor stores;
  • Retail functions at gas stations and convenience stores;
  • Retail located within healthcare facilities;
  • Banks and other financial institutions with retail functions;
  • Pet and feed stores; and
  • Laundromats and dry cleaners.

Also effective March 24, any “brick and mortar retail business” not listed as an “essential business” may continue to operate, but must limit all in-person shopping to no more than 10 patrons per establishment – with “proper social distancing requirements.”

The Executive Orders exempts (i) the provision of health care or medical services, (ii) access to essential services for low-income residents (specifically including food banks), (iii) operation of the media, (iv) law enforcement agencies, and (v) the operation of government.

The Virginia Governor’s complete Executive Orders can be found at: https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-53-Temporary-Restrictions-Due-To-Novel-Coronavirus-(COVID-19).pdf and https://wanada.org/wp-content/uploads/2020/03/EO-55-Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-COVID-19.pdf

Violation of any restrictions set forth in the Executive Orders constitutes a Class 1 misdemeanor which, under Virginia law, is punishable by a fine of up to $2,500 and a jail sentence of up to 12 months. For questions on how the new restrictions imposed by Virginia may impact your business, contact a Virginia Business Law & Transactions Group attorney at Offit Kurman.

Offit Kurman Business Law & Transactions Group Attorneys James Markwood and Tom Hicks contributed to this Article.
They are based in the firm’s Tysons Corner, Virginia office.

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