As of March 15, 2020, Governor Cuomo has issued three (3) Executive Orders (“EO”) relating to Covid-19: EO- 202 issued on March 7th; EO-202.1 issued on March 13; and EO-202.2 issued on March 14th. We discussed the impact of Covid-19 and EO 202.1 on public meetings and the NYS Open Meetings Law in our March 13th Legal Alert, which can be read here: Open Meetings Law In Light of COVID-19
While there has been significant media coverage surrounding the closing of schools, sporting events, Broadway plays and gatherings of 500 people or more, less attention has been focused on the provisions of the Governor’s EO- 202.1 limiting occupancy of certain buildings open to the public. The public and local government officials should note that EO-202.1 provides:
- Any large gathering or event for which attendance is anticipated to be in excess of 500 people shall be cancelled or postponed for a minimum of 30 days.
- Any place of business or public accommodation, and any gathering or event for which attendance is anticipated to be fewer than 500 people, shall operate at no greater than 50% occupancy, and no greater than 50% of seating capacity, for 30 days effective on Friday, March 13, 2020, except that any theater seating five hundred or more attendees for a live performance located in a city of one million or more shall not hold any further performances after 5pm on March 12, 2020.
- The two preceding directives shall not apply to a school, hospital, nursing home, other medical office or facility as determined by the Commissioner of Health, mass transit or mass transit facility, governmental facility, law enforcement facility, or retail establishments including grocery stores. The Commissioner of Health may allow for businesses that are not public gathering spaces to exceed 500 persons if the occupancy is less than 50% capacity subject to public health review.
These limitations cover any non-retail business place of business or public accommodation, such as a restaurant, bar, health club, office space or hotel. For example, a restaurant with capacity for 30 patrons and seating for 20 can now only allow 15 patrons into the store and seating for 10. It should be noted that retail establishments, including grocery stores, are exempt from this limitation. The Order does not define “retail” and officials will need to determine how it applies on a consistent, but case by case basis by category. The third paragraph of the EO-202.1 lists all exemptions.
These limitations can and should be enforced by local police departments, building departments, code enforcement officers and/or health departments. Municipalities may wish to consider having the following signs printed and posted at regulated establishments:
Pursuant to Governor Cuomo’s Executive Order 202.1 dated March 13, 2020, effective immediately, the occupancy of this establishment has been reduced to _____, and the seating capacity has been reduced to ____. Any business or patron failing to comply with this Order may be subject to prosecution.
Please contact Nicholas Ward-Willis or any other attorney in our Municipal Law Practice Group with any questions.
