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Governor's Emergency Powers Ruled Unconstitutional? Controversial Gathering Prohibitions and Mask Mandate to Survive Under Alternate Legal Authority.

Governor's Emergency Powers Ruled Unconstitutional? Controversial Gathering Prohibitions and Mask Mandate to Survive Under Alternate Legal Authority.

October 14th, 2020

    On October 2, 2020, four weeks after Michigan Governor Gretchen Whitmer issued two new Executive Orders regarding Michigan's Safe Start response to the coronavirus pandemic, the Michigan Supreme Court dealt a serious blow to the Governor's emergency powers. A divided Michigan Supreme Court ruled that the 1945 Emergency Powers of Governors Act which formed the legal basis for the Governor's Executive Orders is unconstitutional. Essentially, the Michigan Supreme Court ruled that the Act indefinitely delegated legislative power to the Executive Branch and that the Governor only possessed the authority to declare a state of emergency or state of disaster once. While the Supreme Court encouraged the Governor and the State Legislature to work together to address the coronavirus crisis, immediately after the Supreme Court's ruling was announced, Governor Whitmer announced her intention to keep the existing coronavirus restrictions in place under alternate legal authority not invalided by the Supreme Court's October 2 ruling.

    On October 5, 2020, Governor Whitmer followed through and Michigan's Department of Health and Human Services issued an emergency order with gathering prohibitions and a mask mandate. This new Emergency Order has been promulgated under alternate statutory authority, specifically the Michigan Public Health Code. MCL 333.2253(1) provides that "[i]f the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws."

    The Health Department Order's Limitations on Gatherings

    A "gathering" is defined to include any instance where persons from multiple households are present in a shared space in groups of two or more, but does not apply in instances of incidental gatherings in shared spaces such as airports, bus stations, factory floors, restaurants, shopping malls, public pools or workplaces.

    Under the Health Department Order, gatherings are permitted only as follows:

    (1) Indoor gatherings of up to 10 persons occurring at a residence are permitted (face coverings are strongly recommended for such gatherings);

    (2) Indoor gatherings of up to 10 persons occurring at a non-residential venue are permitted provided each person at the gathering wears a face covering;

    (3) Indoor gatherings of more than 10 and up to 500 people occurring at a nonresidential venue are permitted only to the extent that the organizers and venue:

    (A) In venues with fixed seating, limit attendance to 20% of seating capacity of the venue, provided however that gatherings at up to 25% of seating capacity are permitted in Region 6, as that region was defined in Executive Order 2020-176;

    (B) In venues without fixed seating, limit attendance to 20 persons per 1,000 square feet in each occupied room, provided however that gatherings of up to 25 persons per 1,000 square feet in each occupied room are permitted in Region 6, as that region was defined in Executive Order 2020-176;

    (C) Require that each person gathered wears a face covering.

    (4) Outdoor gatherings of up to 100 persons occurring at a residence are permitted (face coverings are recommended for such gatherings);

    (5) Outdoor gatherings of up to 100 persons occurring at a non-residential venue are permitted provided that each person at the gathering wears a face covering;

    (6) Outdoor gatherings of more than 100 and up to 1,000 persons occurring at a nonresidential venue with fixed seating are permitted only to the extent that the organizers and venue:

    (A) In venues with fixed seating, limit attendance to 30% of seating capacity;

    (B) In venues without fixed seating, limit attendance to 30 persons per 1,000 square feet, including within any distinct area within the event space;

    (C) Require that each person gathered wear a face covering.

    The Face Mask Mandate

    Except for schools in the northern Lower Peninsula, businesses, government offices, schools, and other operations must not allow indoor gatherings of any kind unless they require individuals to wear a face covering. Individuals are exempted from face coverings if they:

    (a) Are younger than five years old (and, per guidance from the Centers for Disease Control and Prevention ("CDC"), children under the age of two should not wear a mask);

    (b) Cannot medically tolerate a face covering;

    (c) Are eating or drinking while seated at a food service establishment;

    (d) Are exercising outdoors and able to consistently maintain six feet of social distance;

    (e) Are swimming;

    (f) Are receiving a service for which temporary removal of the face covering is necessary;

    (g) Are entering a business or are receiving a service and are asked to temporarily remove a face covering for identification purposes;

    (h) Are communicating with someone who is deaf, deafblind, or hard of hearing and where the ability to see the mouth is essential to communication;

    (i) Are actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, and where wearing a mask would seriously interfere in the performance of their public safety responsibilities;

    (j) Are at a polling place for purposes of voting in an election;

    (k) Are officiating or engaging in a religious service;

    (l) Are giving a speech for broadcast or to an audience, provided that the audience is at least six feet away from the speaker;

    It is also important to note that local health departments have the ability to enact their own orders replacing or extending these provisions as deemed necessary.

    As with the prior coronavirus orders, Community Associations must comply with all restrictions and requirements that govern the operation of commonly-used amenities. If you have any questions regarding the current emergency order under MCL 333.2253 or would like assistance with drafting appropriate rules and regulations for your Community Association, please contact one of the experienced attorneys at our firm.

    Author

    James J. Tocco
    James J. Tocco

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