Maryland Governor Orders Closing All Non-Essential Businesses and Other Establishments

On March 23, 2020, Maryland’s Governor Larry Hogan issued three executive orders addressing the COVID-19 emergency: (1) Order 20-03-23-01 closing non-essential businesses throughout the state of Maryland, (2) Order 20-03-23-02 authorizing Maryland laboratories to perform COVID-19 testing, and (3) Order 20-03-23-03 prohibiting excess profits on certain goods and services.

Order 20-03-23-01 Closure of Non-Essential Businesses

In addition to restating Governor Hogan’s earlier order prohibiting gatherings in the state of 10 or more people, the Order requires businesses and other organizations that are not part of the critical infrastructure sectors identified by the US Department of Homeland Security’s Cybersecurity and Infrastructure Agency[1] to close their physical workplaces and facilities to the general public, effective as of 5 p.m. ET on March 23. The Order identifies the list of specific businesses that are deemed non-essential and are therefore ordered closed to include the following:

Senior Centers. All senior citizen activities centers (as defined in Section 10-501(i) of the Human Services Article of the Maryland Code)
Restaurants and Bars. Restaurants, bars, and other similar establishments that sell food or beverages for consumption on premises. Excluded from this category are food and beverage services in health care facilities. Also excluded from this category are food and beverage sales that are (1) promptly taken from the premises (i.e. carry out or drive through); and (2) delivered to customers off the premises.
Fitness Centers. Fitness centers, health clubs, health spas, gyms, aquatic centers, and self-defense schools. Excluded from this are any portion of these facilities that are licensed to provide child care services.
Theaters. This includes facilities showing both live performances and/or motion pictures.
Malls. This pertains only to malls that have one or more enclosed pedestrian concourses are ordered closed, specifically (1) pedestrian concourses and other interior common areas open to the general public, including without limitation, food courts; and (2) retail establishments only accessible to the general public from enclosed pedestrian concourses or other interior areas. Excluded from this are retail establishments that are accessible from the outside. The Order leaves it up to local governments approve access to interior retail establishments (and interior access routes) selling or offering groceries, pharmacy products, or health care services.
Other Recreational Establishments. This catch-all provision includes bingo halls, bowling alleys, pool halls, amusement parks, roller and ice skating rinks, all golf courses (public and private), miniature golf establishments, and driving ranges, social and fraternal clubs, including without limitation, American Legion posts, VFW posts, and Elks Clubs , and any other establishment not listed above that is subject to the admission and amusement tax under Title 4 of the Tax-General Article of the Maryland Code.
Other Miscellaneous Establishments. This catch-all provision includes, tattoo parlors, tanning salons, barber shops, and beauty salons and all other establishments that provide esthetic services, provide hair services, or provide nail services.

Essential facilities to remain open

The Order further delineates what it deems falls outside of the non-essential designation. Among these exclusions include (1) any federal, state, or local government unit, building, or facility; (b) any newspaper, television, radio, or other media service; or (3) any non-profit organization or facility providing essential services to low-income persons, including, without limitation, homeless shelters, food banks, and soup kitchens.

The Order also exempts various other industries within the infrastructure sector, including (1) the chemical sector; (2) the critical manufacturing sector; (3) the emergency services sector; (4) the energy sector; (5) the financial services sector; (6) the food and agriculture sector; (7) transportation; (8) water and wastewater; and (9) public works. In contrast to its neighboring state of Pennsylvania, Maryland also authorized construction activities to continue in the state during the non-essential business shutdown.

Specific instructions are provided for government facilities with large occupancies. Those facilities that have an expected attendance of more than 10 people are required to (1) post in the building a copy of the Maryland Department of Health recommendations for social distancing, (2) provide all occupants and attendees with the capability to wash their hands, and (3) provide a copy of the Order.

Enforcement

Officers of the State or a political subdivision are tasked with executing and enforcing the Order. A person who knowingly and willfully violates this Order is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both. The Order remains in place indefinitely until termination of the state of emergency and the proclamation of the catastrophic health emergency has been rescinded, or until rescinded, superseded, amended, or revised by additional orders. Any statutes or regulations that are inconsistent with the Order are suspended.

Order 20-03-23-02 Laboratory Testing

Governor Hogan also authorized the Secretary of Health of the State of Maryland to implement a process to authorize laboratories in the state to develop and perform testing for COVID-19. Such testing must be developed in accordance with the Food and Drug Administration’s diagnostic testing guidelines issued on March 16.

Order 20-03-23-03 Price Gouging

Finally, Governor Hogan issued an order prohibiting retailers in the state from increasing the sale or rental price of the following goods and services to a price that increases the retailer’s profit on the good or service by more than 10%:

Food
Beverage
Fuel
Water
Ice
Medicine
Hygiene and personal care products
Medical supplies or equipment
Cleaning products
Pet food
Veterinary care
Motor vehicle parts and repairs
Building supplies and equipment
Home improvement and maintenance
Storage space
Delivery, including shipping and handling
Computers, related electronic devices, or software programs
Energy sources
Batteries
Internet, telephone, and telecommunications
Video streaming
Website hosting
Child care

The Order is aimed at providing Marylanders with access to the aforementioned goods and services at reasonable prices during the duration of the emergency and stopping retailers from increasing prices to receive windfalls and excess profits.

[1] https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce