Update on Statewide Shelter in Place Order

Its been nearly seven weeks since the State of California has been put on a statewide shelter in place order. In the past couple of days, the Governor has indicated that the State will begin to move towards a phased re-opening. There is yet much to be learned as to what that will look like but today we begin to unpack the recent executive order addressing phased re-opening.

As always, if you have any questions about your real estate, business, estate planning, or any other legal issue, please let us know by e-mailing managing shareholder Keith Dunnagan at kbdunnagan@bpelaw.com.

Also, remember that we do legal presentations for business and community organizations. If your group would like to schedule a presentation, please contact me to set up a date and time.

Update on Statewide Shelter in Place Order
By: D. Keith Dunnagan, Esq.

On March 19, 2020, Gov. Newsom issued a statewide shelter in place order under Executive Order N-33-20 that functionally mandated non-essential businesses and activity to cease and required individuals to remain home with limited exceptions for certain defined essential activities. There will be legal fallout from this order for years to come. Lawsuits around the state are in the early stages of litigation and raise allegations of violations of free speech rights, religious freedoms, peaceful assembly and protest to name a few. We will likely see many more cases in months and years to come that challenge and allege fifth amendment violations for taking property without just compensation and the legal debates will be waged on whether the actions were proper and within the scope of gubernatorial authority or not.

On May 4, 2020, the State announced that on Friday, May 8, 2020 the state will begin re-opening certain business sectors with modifications under what has been described as a Phase 2 re-opening. In doing so, Gov. Newsom issued Executive Order N-60-20 to allow Californians to begin a process to gradually resume certain activities within the state. In issuing this Order, Gov. Newsom unlike prior executive orders, directed the State Public Health Officer to determine criteria and procedures so that local jurisdictions with certain representations could depart from the statewide guidance and move to less restrictive measures consistent with the public health implications at the local level. Since the beginning of the COVID-19 outbreak, the local jurisdictions have been limited in acting based upon local needs because of the mandates of the March 19, 2020 statewide shelter order. That is now beginning to ease.

The big question is what will the Phase 2 re-opening look like. From the technical legal sense, not much has been provided as to what will definitively take place. The best legal description is that is an arbitrary mess with little concrete direction and definition. But we will do our best to unpack what this means. In the early portion of Phase 2 re-opening, the state will permit expanded retail business limited to “curbside pickup” and manufacturing and supply chains related to businesses such as bookstores, clothing stores, florists and sporting goods. The way the current guidance is framed is that the Phase 2 re-opening is limited to compliance with the order and if the activity cannot be completed by a curbside transaction, it should not take place. There is no practicality or common sense used in framing this plan. Most people do not buy clothes without first trying them on, most browse book aisles before purchasing a book, or how many buy shoes without trying them on first.

This plan, while well intentioned, disproportionately disadvantages the small business owners. Creating the infrastructure to maintain comprehensive online shopping presence is a significant financial undertaking. Many small business retailers simply cannot afford to create this infrastructure right now. Further, many businesses in these retail markets are largely dependent on foot traffic from other surrounding businesses. Without such foot traffic, the small businesses risk increasing expenses without the corresponding boost in revenues.

What is not included at this time is non-essential office work, seated dining at restaurants and shopping malls. The stated goal is that the re-opening should be slow and gradual and limit the potential for spread of COVID-19.

As part of the Phase 2 re-opening, the Government has doubled down on its program for contact tracing. It remains to be seen what this will actually look like and how it will be enforced. The law is clear in that the State does have inherent police power to maintain the health and welfare of its citizens. Nonetheless, that police power is tempered by the requirements of the US Constitution and the 4th Amendment search and seizure protections and the 5th Amendment due process requirements. The Federal Department of Justice, concerned with potential abuse and overreach by local governments issued a memo to all US Attorneys to be mindful of potential violations of civil rights. A reminder that the Constitution is the supreme law of the land and that it is not suspended in times of crisis. A copy of the Attorney General Barr’s memo can be found here.

One thing is for sure, we are all learning together. This is only the first step of the re-opening process and what has been outlined already may not be what happens. At the time of the release of the Phase 2 re-opening plan, it was reported that further guidance would be provided on Thursday, May 7, 2020. We will be watching to see what that guidance looks like and what additional details can be learned.

There is no doubt this disease has had a tragic and real outcome for far too many people. But the American people are resilient and resourceful. We will get through this pandemic; we will be better because of these difficulties and we will choose to endure and improve and our society will strengthen as a result.

The preamble to the US Constitution says it better than any words we can muster:

We the People of the United State, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The information contained in this article is for informational purposes only and not to be construed as legal advice. If you have questions, you should seek competent legal representation to assist you.


The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in probate, business and real estate matters and have represented and advised brokers on their professional obligations as well as consumers on their rights. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at kbdunnagan@bpelaw.com. Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.