In response to the COVID-19 outbreak, more than 30 states have issued executive orders requiring citizens to stay home and shuttering non-essential businesses. (Check out Nelson Mullins’ prior coverage of these orders here.) Though South Carolina Governor Henry McMaster has not issued an order requiring South Carolinians to stay at home, he has issued an order shuttering non-essential businesses, Executive Order 20-17.[1] This executive order does not require citizens to shelter in place, as the Governor explained at his press conference today: “We are not ordering people to stay at home, but from the very beginning, we have been asking people to stay at home.”
Thus, the Executive Order stops short of being a full shelter-in-place or stay-at-home order issued by many states and even a few South Carolina cities and counties (as Nelson Mullins previously discussed here). That said, the order will still close many businesses across the State tomorrow. Here’s what you need to know about how today’s order will affect your South Carolina business.
South Carolina’s Executive Order 20-16
Governor McMaster’s Executive Order closes non-essential businesses effective 5:00 p.m. on Wednesday, April 1, 2020. Unlike COVID-19 executive orders issued by other states, the Executive Order does not attempt to list all of the potential essential businesses that might remain open. Nor does it incorporate the revised guidance provided by the Director of the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency in a March 28, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (the “CISA Memo”).
The Executive Order instead lists those businesses that must close by tomorrow at 5:00 p.m.:
- Entertainment venues and facilities as follows:
a. Night clubs
b. Bowling alleys
c. Arcades
d. Concert venues
e. Theaters, auditoriums, and performing arts centers
f. Tourist attractions (including museums, aquariums, and planetariums)
g. Racetracks
h. Indoor children’s play areas, with the exception of licensed childcare facilities
i. Adult entertainment venues
j. Bingo halls
k. Venues operated by social clubs
- Recreational and athletic facilities and activities as follows:
a. Fitness and exercise centers and commercial gyms
b. Spas and public or commercial swimming pools
c. Group exercise facilities, to include yoga, barre, and spin studios or facilities
d. Spectator sports
e. Sports that involve interaction in close proximity to and within less than six (6) feet of another person
f. Activities that require the use of shared sporting apparatus and equipment
g. Activities on commercial or public playground equipment
- Close-contact service providers as follows:
a. Barber shops
b. Hair salons
c. Waxing salons
d. Threading salons
e. Nail salons and spas
f. Body-art facilities and tattoo services
g. Tanning salons
h. Massage-therapy establishments and massage services
The Executive Order authorizes law enforcement to enforce the closure of non-essential businesses, referencing both S.C. Code Ann. § 16-7-10(A) and § 1-3-440(4). The first code section makes refusing to comply with the Executive Order a misdemeanor punishable by $100 and up to thirty days in prison. The second code section permits the Governor to authorize local government officials to enforce the provisions of the Executive Order through the State’s court system.
Verification by the Department of Commerce
Governor McMaster’s Executive Order provides businesses a way to verify whether they are essential or non-essential under the Executive Order. Businesses can contact the South Carolina Department of Commerce by phone (803-734-2873) or by email to verify whether the Executive Order requires the business to close tomorrow. The Executive Order anticipates a 24-hour turnaround time for a verification response and permits the Department of Commerce to consult with the South Carolina Attorney General to determine how to respond.
Importantly, the order permits the business seeking verification to remain open until it gets a response from the Department of Commerce. This is slightly different from orders issued around the country, which required businesses to close until they received confirmation from the relevant state agency that they are deemed essential and could remain operational. The businesses still must adhere to guidance issued by state and federal public health and safety officials while waiting on a response.
Preemption of Local Emergency Ordinances
Last week, three of South Carolina’s largest cities issued their own emergency stay at home ordinances: Charleston, Myrtle Beach, and Columbia. Since then, other local governments have issued or contemplated similar emergency orders.
The Executive Order explains that it supersedes and preempts any local government’s attempts to “adopt or enforce a local ordinance, rule, regulation, or other restriction that conflicts” with the Executive Order. It specifically states that the Executive Order “shall supersede and preempt any such local ordinance, rule, regulation, or other restriction.”
When asked at his press conference whether the Executive Order preempts the local emergency ordinances, the Governor responded, “Yes, that is the law. It has been the law . . . That’s not based on the executive order, it is the law of South Carolina.”[2] This likely is a reference to the South Carolina Attorney General’s opinion on Friday concluding that the emergency powers under South Carolina law “are exclusive and may be exercised only by the” Governor alone.[3]
