Governor’s Stay At Home Order Extended – What Does This Mean for Local Governments?

Published for Coates' Canons on April 24, 2020.

On April 23rd, Governor Cooper issued Executive Order 135 extending his statewide Stay At Home Order (Executive Order 121) for another nine days.  The Governor’s Stay At Home Order was due to expire on April 29th; EO 135 extends it to 5:00p.m. on May 8, 2020.  Is this all that EO135 does?  Below is the relevant language from that Executive Order:

Sections 1, 4, and 5 of Executive Order No. 118; Sections 1, 2, 3 and 5 of Executive Order No. 120; and all of Executive Order No. 121 are in effect, and shall remain in effect, until 5:00 pm on May 8, 2020.  Sections 1 and 2 of Executive Order No. 131 are amended to expire at 5:00pm on May 8, 2020.  The effective date provisions of Executive Orders Nos. 118, 120, 1 21, and 131 are amended to have the above-listed sections of those orders continue in effect through the above-listed time and date.  Future Executive Orders may extend the term of these Executive Orders.  An Executive Order rescinding the Declaration of a State of Emergency will automatically rescind this Executive Order.

For those readers not accustomed to interpreting revisions to effective dates, this paragraph might seem Greek to you.  This blog post unpacks EO135 and summarizes those provisions of all previous COVID-19 Executive Orders with effective dates modified or extended under EO135.

What Does EO135 NOT Do?

Let’s first address whether EO135 makes any substantive changes to restrictions or prohibitions already in place under previous COVID-19 Executive Orders.  It does not.  EO135 simply extends or adjusts the expiration dates of all cited provisions in previous Executive Orders to 5:00p.m. on May 8, 2020.  Prior Executive Orders not referenced in EO135, including some which directly impact local governments, remain in effect and are unchanged.  These include EO122 (authorizing donations of state surplus property to local governments) and EO124 (prohibiting utility shut-offs).

In addition, EO135 does not preempt or rescind any county or city emergency restrictions or prohibitions which are more stringent than those imposed under COVID-19 Executive Orders.  In fact, Section 4 of EO121 specifically preserves these authorities (see this blog for more discussion of the Governor’s Stay at Home Order and its impact on local emergency restrictions).  There is one exception –  Section 1 of EO131 already preempted local declarations imposing more restrictive maximum occupancy limits on retail establishments.  This preemption remains in effect and is summarized below.

What DOES EO135 Do?

EO135 extends or modifies the expiration date for the sections in prior COVID-19 Executive Orders discussed below.  All sections now expire at 5:00p.m. on May 8, 2020.

Executive Order No. 118 (Section 1) closing bars and prohibiting in-person dining in restaurants.

Executive Order No. 120, ordering the following:

  • Section 1 – Closed certain businesses such as hair salons, movie theaters, gyms, live performance venues, and gaming establishments. Mass gathering restrictions were also imposed and then lowered to no more than ten persons in EO121 (see below).
  • Section 2 – Required local government operations which are mandated by state and federal law to continue to function (examples include County DSS, Registers of Deeds, law enforcement and first responder agencies, and other local government functions that are required to protect lives and property).
  • Section 3 – Imposed visitor restrictions at long-term care facilities.

Executive Order No. 121 (all Sections) imposing the Governor’s statewide Stay At Home Order including stay-at-home measures, restrictions on certain business operations, and mass gathering restrictions of no more than 10 persons.  EO121 also preserved the emergency authorities of cities and counties to impose more restrictive measures (except for limits on maximum occupancy for retail establishments; see EO131, Sec. 1 discussed below).  For more discussion on the restrictions imposed under the Governor’s Stay at Home Order, see this blog.

Executive Order No. 131 (Sections 1 and 2) imposing specific social distancing requirements on retail establishments described below (the expiration date of EO131, which was set to expire on May 13th, was modified to conform with the new May 8th expiration date for Stay at Home).

  • Section 1 – Imposed specific social distancing requirements on retail establishments, including emergency maximum occupancy limits, social distancing markings within the establishment, and cleaning and disinfection requirements. These requirements also apply to any businesses allowed to remain open under the Governor’s Stay at Home Order if they met social distancing requirements (Section 2(C)(1) of EO121).  All businesses required to close under previous Orders must remain closed (such as hair salons and video gaming establishments).  This Section also specifically rescinds and prohibits any local emergency restrictions on maximum occupancy limits or other social distancing requirements for retail establishments that conflict with those imposed under Section 1 of EO121.  This preemption remains in effect.
  • Section 2 – Established recommended policies for retail establishments to further mitigate the spread of COVID-19 such as face coverings for employees, hand hygiene, designated shopping times for at-risk groups such as the elderly, online ordering and curbside pick-up options for customers, shields at cash registers, and other similar measures. While these strategies are not mandatory, they are strongly encouraged.

By now, you may have noticed that there is no reference to public school closures.  That is because EO135 did not extend the Order closing public schools (EO120, Section 4) which is set to expire on May 15th.  However, on April 24th, the Governor announced public schools would remain closed for the remainder of the current academic year while maintaining remote teaching and learning.

All COVID-19 Executive Orders and FAQs for these Orders relevant to local governments are available on the School of Government’s COVID-19 Emergency Management website.  All COVID-19 Executive Orders and FAQs are available on the State’s COVID-19 website.

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Public Officials - Local and State Government Roles
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