Background
On March 9, 2020, Gov. Murphy signed Executive Order Number 103 (EO 103), declaring a State of Emergency and a Public Health Emergency in response to the novel coronavirus (COVID-19). EO 103 provided, among other things, that in accordance with New Jersey Revised Statutes, Appendix A, 9-40 (App.A:9-40), no municipalities are permitted to enact or enforce any rule or regulation that would conflict with EO 103 or impede or interfere with the achievement of EO 103. App.A:9-40 provides that all officers, agents and employees of all subdivisions within New Jersey must fully cooperate with the Governor in all matters affecting any emergency; and that it is unlawful for any municipality to adopt any rule or regulation at variance with such orders issued by the Governor. The power to determine whether a rule or regulation is at variance with an order rests within the Governor. EO 103 was followed a week later by Executive Order Number 104 (EO 104), signed on March 16, 2020, which limited gatherings to a maximum of 50 people; closed schools, casinos, movie theaters, gyms and dine-in restaurants; and imposed a curfew between 8:00 p.m. and 5:00 a.m. on nonessential businesses (from which grocery stores, pharmacies, gas stations, medical supply stores, and health care facilities are exempted).
The Present
On March 21, 2020, Gov. Murphy issued Executive Order 107 (EO 107), which requires all New Jersey residents to shelter in their residence, except where certain exceptions apply. Exceptions to the shelter in place order include grocery shopping, seeking medical attention, visiting close family members, outdoor activities while following social distancing practices, and leaving for educational, religious, or political reasons. Pursuant to EO 107, all nonessential retail businesses are required to close; retail establishments which are permitted to remain open (full list on Appendix A) are required to abide by social distancing practices. The establishments that were previously ordered to close by EO 104 (including schools, casinos, and movie theaters) must remain closed. EO 107 requires additional categories of businesses to close shop, including places of public amusement, beauty salons, libraries and shopping malls (a full list of the additional businesses affected by EO 107 is set forth in Appendix B). The State Director of Emergency Management is permitted to make changes to both lists in Appendix A and Appendix B at its discretion.
The Governor also issued Executive Order 108 (EO 108) on March 21, 2020. EO 108 invalidates any county or municipal restriction imposed in response to COVID-19 which may conflict with EO 107, with few exceptions. In essence, EO 108 prohibits the enactment of any rule, regulation or law by a municipality or county in New Jersey pertaining to COVID-19, except where the rule, regulation or law pertains to online offering of lodging (e.g., Airbnb and VRBO), or to municipal or county parks. Consistent with EO 107, the State Director of Emergency Management is permitted to make changes to EO 108 at its discretion. Violating either EO 107 or EO 108 can result in penalties under N.J.S.A. App. A:9-49, which imposes a fine of up to one thousand dollars ($1000) or a term of up to six months in prison for disorderly conduct, and N.J.S.A. App. A:9-50, which prohibits the aiding and abetting of another person’s disorderly conduct, and imposes the same punishment on the aider/abettor as on the principal.
New Jersey is unique compared to other states hit hard by COVID-19 in that pursuant to EO 107 and EO 108, it is mandated that there can be no difference between local laws and state laws when it comes to COVID-19. This unitary approach to the COVID-19 crisis could result in less confusion and thus a more efficient response; however, a uniform approach means that different New Jersey counties and localities may be disparately impacted by the Governor’s orders. For example, counties that rely heavily on retail traffic may sustain greater economic impact than more rural counties, as shopping malls must be closed under EO 107; but municipalities retain discretion to operate municipal parks.
This is a fluid situation that will undoubtedly develop in the coming weeks, as the course of COVID-19 changes.
