Edward Lindsey

Georgia’s 2020 Primary Election Results

The 2020 Georgia Primary is behind us. Unfortunately, in some respects, the administrative process has overshadowed the results. Adjusting to the new normal caused by the COVID-19 pandemic, problems with getting absentee ballots to folks wishing to vote by mail, a new electronic voting machine system, difficulties with training new poll workers, and long lines and delays at Primary Election Day precincts have led to finger pointing between the Georgia Secretary of State’s office and local county election boards. All of this will need to be worked out before the November General Election.

There are still thousands of absentee votes still to be counted statewide so many close races are still in play. With that said, here are some of the more interesting election results from Tuesday’s primary that we know at the present time:

Presidential Primary

As expected, Joe Biden won handily with 83% in the Democratic Primary. Still, Bernie Sanders received 10% despite having dropped out of the race and conceding in March.

US Senate — Democratic Primary

Despite a crowded seven way primary, Jon Ossoff has a commanding lead hovering back and forth at the needed 50% + 1 position to avoid a runoff against his second place rival former Columbus Mayor Teresa Tomlinson at 15%. If late returns cannot push him over 50%, he will be forced into an August 11th runoff against Tomlinson. The winner will take on incumbent Senator David Perdue in November.

Contested Supreme Court Races

Two Supreme Court appointees by former Governor Nathan Deal beat back challenges to win a full term. Justice Sarah Warren easily won with 78% while Justice Charlie Bethel beat back a strong challenge from former State Representative Beth Beskin 53% to 47%.

Congressional Races

Georgia has three open congressional races — the 7th in Gwinnett and Forsyth Counties, the 9th in the mountains of North Georgia, and the 14th in Northwest Georgia. The 7th is most likely to be a close race in November given the fact that retiring Republican Rob Woodall only squeaked to re-election in 2018 by a few hundred votes.  Woodall’s 2018 Democratic challenger Georgia State Professor Carolyn Bourdeaux holds a commanding lead in a crowded race over second place finisher State Representative Brenda Romero, 46 to 14%. A runoff between Bordeaux and Romero will be held August 11th. On the Republican side, former Army doctor Rich McCormick won his crowded primary with 55%.

In the 9th Congressional race, State Representative Matt Gurtler and Gun Store Owner Andrew Clyde, with 22 and 19% respectively, edged out a crowded Republican field for runoff spots on August 11th. The winner of the runoff will face Brooke Siskin in November in this historically overwhelmingly Republican district.  

In the 14th Congressional Race, Tea Party favorite Marjorie Greene and Rome Doctor John Cowan are headed to a Republican Party runoff August 11th. There is no Democrat running in November.

One other Congressional race is likely to draw attention in November. Former Republican Congresswoman Karen Handel won her primary easily to set up a rematch against Congresswoman Lucy McBath in the 6th Congressional District. McBath defeated Handel in 2018.

State Legislative Races

Several incumbent legislators — including Democratic Senator Ed Harbison and Republicans Brandon Beach and Jeff Mullis, as well as House Minority Leader Bob Trammell — faced stiff primary opponents on Tuesday but appear to have beat back their challengers. However, Brunswick Republican Representative Jeff Jones was defeated by Buddy DeLoach, and five term Conyers Democrat Representative Pam Dickerson was beaten by newcomer Sharon Henderson. Also, three longtime Democratic Representatives Sharon Beasley-Teague and Michele Henson and Democratic Senator Horacena Tate were forced into runoffs for the first time in many years.

While many incumbents faced tough reelections, one veteran high profile legislator is making a return. Former State Representative and 2016 Gubernatorial Candidate Stacey Evans won a decisive primary victory in an Atlanta State House district. She has no Democratic opponent in the fall.  

Fulton County District Attorney Incumbent Paul Howard, who has run unopposed for Fulton County District Attorney since 2000, is currently trailing to primary challenger Fani Willis. Neither of the two are likely to break the 50% mark, Willis with 41% of the vote and Howard with 34% of the vote, and will be headed to a runoff.

Status of Executive Orders in Georgia – April 24, 2020

On March 13, President Donald Trump declared a national emergency due to the rapidly spreading coronavirus. Since that time the virus has exploded in the United States leading to four federal relief bills and a litany of executive orders on the state level. Georgia, home to over 22,000 cases, is beginning to open businesses pursuant to health and safety regulations laid out by Governor Kemp.

A Partial Summary of the State Executive Orders

Several State Executive Orders concerning COVID-19 have been executed by Governor Kemp since March 14. 

March 14th

The first executive order declared a Public Health Emergency, with the General Assembly concurring on March 16. Pursuant to that order broad powers were given the Governor per O.C.G.A. Sec. 38-3-51. The Governor used those powers to specifically direct the Georgia Department of Public Health and the Georgia Emergency Management Agency to fully activate their operations to address the emergency. Among other things, temporary health care licenses were authorized as well as other issues pertaining to infrastructure.  The second Executive Order authorized National Guard troops to aid in the preparation, response and recovery to this pandemic.

March 16th

The Governor closed elementary, secondary and post-secondary schools effective March 18.  This action was extended twice through the remainder of this academic year.

March 20th and 23rd

The Department of Community Health and other health care licensing Boards were granted additional emergency authority. The March 23 Order directed that the Department of Public Health mandate that persons with serious underlying health conditions “shelter in place.”  Bars were ordered closed and businesses could not allow more than ten persons to be gathered in a single location with everyone 6’ apart.  DPH was authorized to close non-compliant businesses and the State Patrol was authorized to assist in the enforcement of the Order.

April 2nd

All residents and visitors were required to “shelter in place,” unless they conducted or participated in “Essential Services,” the minimum basic operations of a business, performed necessary travel e.g. grocery shopping and doctor visits, or were a part of the workforce for “Critical Infrastructure.”  All businesses, essential and non-essential, were directed to screen and evaluate workers who exhibited signs of illness and enhance sanitation practices, as well as provide alternative points of sale e.g. curb pick-up.  Dine-in restaurant service was discontinued as well as gyms and the like.  The Governor also suspended any existing or future local government restrictive Orders.

April 3rd

Sheriffs were similarly authorized to enforce the prior Orders. 

April 8th

The Public Health State of Emergency was extended through May 13.

April 14th

The Governor proclaimed that employees, staff and contractors of healthcare institutions and facilities were considered auxiliary emergency management workers per O.C.G.A. Sec. 38-3-35, thus enhancing liability protection to those individuals and entities.

April 20th

The Governor authorized “elective” healthcare procedures to commence operation, as well as permitting gyms, hair salons and the like to open Friday, April 24 as long as they follow strict guidelines.  The ten-person, 6’ apart guidelines remain.  DPH entered into an agreement with Augusta University Health System to provide screening and testing services.  EMT providers and the like were similarly afforded auxiliary health status too. 

The April 23 Executive Order

Governor Kemp has issued new guidelines for the gradual opening of businesses. As it relates to the public, social distancing is still mandated with individuals strongly encouraged to wear face coverings while outside their home.  No businesses shall allow gatherings of persons. “Shelter in place” remains for all individuals at higher risk of severe illness, to include those persons who are 65 years of age or older, while still permitting grocery shopping etc.

With regard to Restaurants and dining services, effective Monday, April 27, no more than 10 patrons can be in a restaurant per 500 sq. ft. of public space [including waiting and bar areas]. 

All such restaurants and dining rooms must institute the following measures[1]:

  • Screen and evaluate workers who exhibit signs of illness, such as a fever over 100.4  degrees, cough, or shortness of breath;
  • Require such workers to not report to work or seek medical attention;
  • Implement teleworking for all possible workers;
  • Hold all meetings virtually, whenever possible;
  • Train all employees on the importance and expectation of increased frequency of handwashing and use of hand sanitizers, avoid touching hands to face;
  • Require all employees to wear face coverings at all times, cleaned or replaced daily;
  • Increase physical space between workers and patrons;
  • Discontinue the use of salad bars and buffets;
  • Thoroughly clean and sanitize the entire facility before resuming dine-in services and continue to do so regularly;
  • Between diners, clean and sanitize tabletops, commonly touched areas, and discarding single-use items;
  • Use rolled silverware and eliminate table presets;
  • Remove self-service drink, condiment and the like items;
  • Disposable paper menus are strongly encouraged;
  • Clean and sanitize restrooms regularly;
  • Implement procedures to increase cleaning and sanitizing of surfaces in the back-of-house;
  • Update floor plans for dining areas, ensuring at least 6’ of separation from seating to  seating;
  • Limit party size at tables to no more than 6;
  • Where practicable, consider a reservations-only business model;
  • Post signage that no one with a fever or other symptoms of COVID-19 is permitted in the facility;
  • Provide hand sanitizer for use by patrons;
  • Use technological solutions where possible to reduce person-to-person interaction such as mobile ordering and contactless payment options; and,
  • Seek to design a process for patron separation while waiting to be seated, going to the restroom, and/or entering or exiting the premises.

Retail food businesses shall:

  • Limit the number of patrons inside the store to 50% of fire capacity or 8 patrons per 1,000 sq. ft.
  • Encourage patrons to use hand sanitizer upon entering
  • Encourage non-cash payments when possible
  • Sanitize the doors at least 3 times each day
  • Install protective screens or like mitigation measures where worker-patron interactions are likely
  • Provide additional hand sanitizer within the business.

Food establishments shall:

  • Encourage scheduling specific hours of operation for vulnerable populations to shop without other patrons
  • Reduce store hours to increase cleaning and sanitation while the store is closed
  • Encourage social distancing such as protective screens at service counters and at cash registers
  • Signage and decals on social distancing, and the use of one-way aisles. 
  • Workers should be given PPE as available and patrons should be encouraged to wear face coverings
  • Discontinuing sampling or cooking stations
  • Closing self-serve salad bars and buffets
  • Restrooms should be checked and cleaned/sanitized regularly
  • Allow time for frequent hand washing for employees
  • Adding hand sanitizing stations around stores for patrons and employees.

Gyms shall implement additional measures to prevent the spread of COVID-19, to include:

  • Signage restricting use by patrons that have been diagnosed with the virus, had symptoms or contact with a person that has or is suspected to have COVID-19
  • Enhance sanitation procedures
  • Screen patrons at the entrance for fever cough or shortness of breath
  • Limiting occupancy to enforce social distancing
  • Halting group classes, in-facility child care services
  • Closing pools, basketball courts, hot tubs etc. within the facility
  • Cleaning and sanitizing bathrooms and locker room regularly

Hair designers, massage therapists and the like shall:

  • Provide their services by appointment only
  • Require patrons to sanitize their hands upon entering the facility and before any treatment
  • Post signs that at the entrance and at each workstation that any patron who has symptoms must reschedule their appointment
  • Requiring patrons to wait in their car until their service prover is ready
  • Staggering or spacing workstations more than 10’ apart
  • Staggering work schedules so that no more than 50% of the normal number of employees providing services will be in the business at a time
  • Requiring PPEs as available
  • Sanitizing all equipment used by employees and patrons between each visit
  • Utilizing disposable materials and supplies as much as practicable
  • Training all employees on additional measures.

Indoor movie theatres shall:

  • Have each patron at least 6’ apart
  • Seats must be thoroughly sanitized before and after each showing
  • Assure social distancing
  • Party rooms may not host parties or gatherings
  • Close any playgrounds or arcade rooms.

Bowling alleys shall:

  • Assure similar social distancing and sanitizations
  • Allow groups of 6 or less per lane, seated 6’ apart
  • Score keeping machines must be thoroughly sanitized before and after each use
  • Bowling balls and shoes must be thoroughly sanitized before and after each use.

People working outside without regular contact with other persons shall only be required to practice social distancing and implement sanitation processes.

Dentists and Optometrists must follow their Association guidelines.

Ambulatory Surgical Centers have the similar restrictions to include screening patients before visits and monitoring their health prior to starting surgery, requiring staff to self-monitor and screen for viral symptoms daily, continue to use PPE, follow waiting room spacing guidelines social distancing and face masking. To the extent possible, hospitals, healthcare institutions, medical facilities and nursing homes should offer in-room dining.

Critical Infrastructure can continue in-person operations with implementation of the enhanced measures listed above, e.g. Screening and evaluating workers, enhanced sanitation, disinfecting common surfaces regularly, prohibiting gatherings, implementing teleworking for all possible workers, and suspending the use of Personal Identification Number [PIN] pads, electronic signature capture and the like.

All non-Critical Infrastructure businesses that continue in-person operations shall implement the same types of measures.

All businesses should implement the following measures:

  • Provide Personal Protective Equipment as available;
  • Provide disinfectant and sanitation products for workers to clean their workspace and equipment; and,
  • Increase physical space between worksites to at least 6’.

Public swimming pools, performance venues and amusement rides shall remain closed.

Any law enforcement officer, after providing reasonable notice and issuing at least two citations for violations, is authorized to mandate the closure of such establishment.

The Order is in effect from May 1 until May 13.  In the meantime, local governments can make, amend or rescind order related to emergency management as long as they are not inconsistent with the Governor’s Orders or DPH.

Conclusion

The latest Order loosens restrictions for the fitness and food industries but keeps the balance of restrictions in place through May 13. Concerns raised by President Trump, White House Economic Adviser Larry Kudlow and our own Lt. Gov. Geoff Duncan, warrant serious discussion of legislation at the federal and state levels to limit the liability of businesses that follow strict guidelines but still have customers or employees become infected with COVID-19.  Such businesses, following the pandemic, certainly don’t have the resources to face an onslaught of such suits.  Liability protections may be necessary to re-start our state and national economy.


[1] This is a partial list and does not relate to the operation of dine-in services in hospitals, healthcare facilities, nursing homes or long-term care facilities.

Georgia COVID-19 Update

Introduction

As of April 2nd 2020 the State of Georgia has 5,444 confirmed cases of COVID-19 and has suffered 176 deaths. Yesterday, Governor Kemp issued a state-wide stay at home order via Executive Order to Ensure a Safe and Healthy Georgia. This most recent executive order rescinds and replaces the executive order issued on March 23rd and suspends any local ordinances passed since March 1st that were adopted with the stated purpose or effect of responding to the COVID-19 crisis. In short, this is operative law in the entire state. Highlights of the executive order include:

  1. State-wide stay at home order for all residents
  2. Restrictions on all visitors to those under stay at home orders
  3. Limiting all travel outside of the home unless fulfilling essential services as defined in the order
  4. Constraining business to minimum basic operations as defined in the order, but for Minimum Basic Business Operations and “critical infrastructure” as defined by the US Department of Homeland Security
  5. Prohibits dine-in service at restaurants and social clubs but permits takeout, curbside, pick-up and delivery services

The Georgia Department of Economic Development has been authorized to issue guidance to any business, corporation, organization or trade group regarding its status as critical infrastructure.

In regard to enforcement, the Georgia National Guard and Department of Public Safety are tasked with providing the resources as requested to assist with the enforcement of the Order. Moreover, the Department of Public Health, the Department of Public Safety, or any other state department or state officer deputized by the Governor or Georgia Emergency Management and Homeland Security are authorized to mandate the closure of any business, establishment, corporation, non-profit corporation or organization that does not comply with the Order for a period not to extend beyond the term of the Order.

Any person who violates the Order will be guilty of a misdemeanor.

Notably, the Order, which goes into effect on Friday April 3, only extends until April 13th. That is, in part, due to the fact that the state of emergency, declared on March 14th, is only in place for a maximum of 30 days per OC.G.A. 38-3-51 9 (a). That being said, the resolution passed by the Georgia General Assembly did not place a time limit on further concurrence should the Governor extend the State of Emergency. However, it did assert their right to terminate the state of emergency at any time. As such, there is a good argument that the General Assembly has given the governor the power to renew after 30 days without the necessity of it reconvening to ratify the renewal. 

Executive Order to Ensure a Safe and Healthy Georgia

Per the April 2nd Executive Order All residents and visitors of the State of Georgia shall practice social distancing and sanitation in accordance with this Order and guidelines published by the Centers for Disease Control and Prevention

  1. No business, establishment, corporation, non-profit corporation, organization, or county or municipal government is permitted to allow more than ten (10) persons to be gathered at a single location if such gathering requires persons to stand or to be seated within six (6) feet of any other person. This does not apply to cohabitating persons outside of their homes, family units or roommates residing together in private homes, or entities defined as “Critical Infrastructure”
  2. All residents and visitors of the State of Georgia are required to shelter in place within their homes or places of residence, meaning remaining in their place of residence and taking every possible precaution to limit social interaction to prevent the spread or infection of COVID-19 to themselves or any other person, unless they are:
    • Conducting and participating in Essential Services
    •  Performing Necessary Travel
    • Are engaged in the performance of, or travel to and from, the performance of Minimum Basic Operations for a business, establishment, corporation, or organization not classified as Critical infrastructure; or
    • Are part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from their respective employment
  3.  Essential Services permitted pursuant to the provisions of this Order are limited to the following:
    • Obtaining necessary supplies and services for family or household members, such as food and supplies for household consumption and use, medical supplies or medication, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence. Preference should be given to online ordering, home delivery, and curbside pick-up services wherever possible as opposed to in-store shopping.
    • Engaging in activities essential for the health and safety of family or household members, such as seeking medical, behavioral health, or emergency services.
    • Engaging in outdoor exercise activities so long as a minimum distance of six (6) feet is maintained during such activities between all persons who are not occupants of the same household or residence.
  4. Necessary Travel permitted under this Order is limited to such travel as is required to conduct or participate in Essential Services, Minimum Basic Operations, or Critical Infrastructure as defined by this Order.
  5. Minimum Basic Operations are limited to:
    • The minimum necessary activities to maintain the value of a business, establishment, corporation, non-profit corporation, or organization, provide services, manage inventory, ensure security, process payroll and employee benefits, or for related functions. Such minimum necessary activities include remaining open to the public subject to the restrictions of this Order.
    • The minimum necessary activities to facilitate employees or volunteers being able to work remotely from their residences or members or patrons being able to participate remotely from their residences.
    • Instances where employees are working outdoors without regular contact with other persons, such as delivery services, contractors, landscape businesses, and agricultural industry services.
  6. All businesses, establishments, corporations, non-profit corporations, or organizations that are not Critical Infrastructure shall only engage in Minimum Basic Operations as defined in this Order during the effective dates of this Order. Such entities shall also implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures shall include the following:
    • Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
    • Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
    • Enhancing sanitation of the workplace as appropriate;
    • Requiring hand washing or sanitation by workers at appropriate places within the business location;
    • Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
    • Prohibiting gatherings of workers during working hours;
    • Permitting workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
    • Implementing teleworking for all possible workers;
    • Implementing staggered shifts for all possible workers;
    • Holding all meetings and conferences virtually, wherever possible;
    • Delivering intangible services remotely wherever possible;
    • Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
    • Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;
    • Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
    • Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;
    • Enforcing social distancing of non-cohabitating persons while present on such entity’s leased or owned property;
    • For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia law;
    • Increasing physical space between workers and customers;
    • Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
    • Increasing physical space between workers’ worksites to at least six (6) feet.
  7. The term “Critical Infrastructure” shall refer to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the US Department of Homeland Security as “essential critical infrastructure workforce,” in guidance dated March 19, 2020, and revised on March 28, 2020, and those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance. Critical Infrastructure that continues in-person operation during the effective dates of this Order shall implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures may include, but shall not be limited to:
    • Screening and evaluating workers who exhibit signs of illness,  such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
    • Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
    • Enhancing sanitation of the workplace as appropriate;
    • Requiring hand washing or sanitation by workers at appropriate places within the business location;
    • Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
    • Prohibiting gatherings of workers during working hours;
    • Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
    • Implementing teleworking for all possible workers;
    • Implementing staggered shifts for all possible workers;
    • Holding all meetings and conferences virtually, wherever possible;
    • Delivering intangible services remotely wherever possible;
    • Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
    • Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
    • Prohibiting handshaking and other unnecessary person-to-person contact in the workplace; and
    • Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; and
    • Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.
  8. The Georgia Department of Economic Development is authorized to issue guidance to any business, corporation, organization, or industry trade group regarding its status as Critical Infrastructure. This guidance shall not require a finding of fact but shall be in writing and shall be considered a final agency action for the purpose of proceedings under Code Section 50-13-19.
  9. All restaurants and private social clubs shall cease providing dine-in services. Takeout, curbside pick-up, and delivery are permitted in accordance with the provisions of this Order. This provision shall not limit the operation of dine-in services in hospitals, healthcare facilities, nursing homes, or other long-term care facilities; however, to the extent possible, such facilities should offer in-room dining.
  10. All gyms, fitness centers, bowling alleys, theaters, live performance venues, operators of amusement rides as defined by Code Section 25-15-51, body art studios permitted pursuant to Code Section 31-4o-2, businesses registered pursuant to Code Sections 43¬10-11 and 43-10-18, estheticians as defined by Code Section 43-10¬1(8), hair designers as defined by Code Section 43-10-1(9), persons licensed to practice massage therapy pursuant to Code Section 43¬24A-8, and businesses which possess a license to operate as or otherwise meet the definition of “bar” as defined by Code Section 3¬1-2(2.1), shall cease in-person operations and shall close to the public while this Order is in effect.
  11. Persons required to shelter in place under any provision of this Order shall not receive visitors, except as follows:
    • Visitors providing medical, behavioral health, or emergency services or medical supplies or medication, including home hospice;
    • Visitors providing support for the person to conduct activities of daily living or instrumental activities of daily living;
    • Visitors providing necessary supplies and services, such as food and supplies for household consumption and use, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence; or
    • Visitors received during end-of-life circumstances.
  12. To the extent practicable under the circumstances, visitors shall maintain a minimum distance of six (6) feet between themselves and all other occupants of the person’s home or residence. Any visitors visiting for the sole purpose of delivering medication, supplies, or other tangible goods shall, to the extent practicable, deliver such items in a manner that does not require in-person contact or require the deliverer to enter the person’s home or residence.
  13. The provisions of this Order related to visitors listed in the immediately preceding paragraph shall be strictly enforced against nursing homes or other long-term care facilities, including inpatient hospice, assisted living communities, personal care homes, intermediate care homes, community living arrangements, and community integration homes.
  14. The Department of Public Health, the Department of Public Safety, or any other state department or state officer deputized by the Governor or the Georgia Emergency Management and Homeland Security Agency are, after providing reasonable notice, authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization not in compliance with this Order for a period not to extend beyond the term of this Order.
  15. Pursuant to Code Section 38-3-51, the powers of counties and cities conveyed in Titles 36 and 38, including those specific powers enumerated in Code Sections 36-5-22.1 and 36-35-3 are hereby suspended to the extent of suspending enforcement of any local ordinance or order adopted or issued since March 1, 2020, with the stated purpose or effect of responding to a public health state of emergency, ordering residents to shelter-in-place, ordering a quarantine, or combatting the spread of coronavirus or COVID-19 that in any way conflicts, varies, or differs from the terms of this Order. Enforcement of all such ordinances and orders is hereby suspended and no county or municipality shall adopt any similar ordinance or order while this Order is in effect, except for such ordinances or orders as are designed to enforce compliance with this Order

Critical Infrastructure

The Executive Order exempts “Critical Infrastructure” from the shut-down order and stay at home provisions. “Critical Infrastructure” refers to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the US Department of Homeland Security as “essential critical infrastructure workforce,” in guidance dated March 19, 2020, and revised on March 28, 2020. It also includes those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The order makes it clear that the operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance.

The US Department of Homeland Security Guidance that is referenced in the executive order exempts businesses in the following industries:

  • Health Care/Public Health
  • Law Enforcement, Public Safety, and Other First Responders
  • Food and Agriculture
  • Energy (including electricity, petroleum, natural gas, natural gas liquids, propane and other liquid fuels)
  • Water and Wastewater
  • Transportation and Logistics
  • Public Works and Infrastructure Support Services
  • Communications and Information Technology
  • Other Community or Government Based Operations and Essential Functions
  • Hazardous Materials
  • Financial Services
  • Chemical
  • Defense Industrial Base
  • Commercial Facilities
  • Residential/Shelter Facilities and Services
  • Hygiene Products and Services

Select Industry Profiles

Residential: The Department of Homeland Security exempts residential construction workers in relation to activities to ensure additional housing units that can be made available to combat the nation’s existing housing supply shortage.

Commercial Facilities: Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions are exempt. Additionally, workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions and workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors – with reduced staff to ensure continued operations are exempt. Finally, those distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment are exempt.

Critical Manufacturing: Any manufacturing facility that produces materials necessary to sustain other “critical infrastructure” is exempt. This includes manufacturing facilities that produce materials for medical supply chains, industrial minerals and metals, critical chemicals, food and agriculture etc.

Transportation: The exemptions provided to the transportation industry are focused on maintaining logistical networks to sustain the critical industries. Additionally, mass public transit service workers are permitted to continue work as they provide a portion of the population with needed mobility.

Financial: Any workers need to provide, process and maintain systems for processing, verification, and recording of financial transactions and services, including payment, clearing, and settlement; wholesale funding; insurance services; consumer and commercial lending; and capital markets activities.

Emergency Order Powers

As previously mentioned, the action taken by Governor Kemp in relation to COVID-19 today is pursuant to the State of Emergency Order issued on March 14th which was ratified by the General Assembly, two days later, on March 16th

Under O.C.G.A. §38-3-51, the Governor can declare a State of Emergency due to a health crisis but must also call the General Assembly into a special session “for the purpose of concurring with or terminating the public health emergency.”  The state of emergency remains in effect for 30 days unless expressly extended by the Governor.

Among the powers enumerated by O.C.G.A. §38-3-51, the state of emergency gives the governor considerable power to deal with our present health care crisis. For more information on the powers given to the Governor and Department of Health via the State of Emergency order see our March 14th Soapbox blog post, “Georgia Governor Brian Kemp Declares State of Emergency to Deal with Coronavirus Pandemic and Calls a Special Session of the General Assembly”.

DPH Administrative Orders

Pursuant to the Georgia Code and expanded powers granted under the Emergency declaration, the Department of Public Health issued two Administrative Orders, one on March 23rd and one on March 27th. Further regulatory announcements will likely come due to the latest stay at home executive order.

The March 23rd order addressed isolation and quarantine policies and procedures. Now that the Governor has put in place a state-wide stay at home order that applies to everyone, these administrative regulations are no long applicable.

Similarly, much of the March 27th administrative order is no longer relevant aside from administrative regulations on the staff of any Nursing, Long-Term Care Facilities and Early Child Education Programs, Non-profit food services and any other businesses licensed and monitored by DHS. Said regulations were reaffirmed and in some cases strengthened in the executive order.

Conclusion

The state-wide stay at home Order ends what was a local government driven process that resulted in a myriad of restrictions throughout the state. However, the Executive Order will certainly be followed up by regulations from the Department of Public Health and the publication of a process by which the Department of Economic Development will determine critical versus non-critical business in relation to the US Department of Homeland Security Guidance. As previously mentioned the Executive Order extends through April 13.

If you have any questions please contact the Dentons Public Policy Team.

Georgia Post-Crossover Legislative Update – March 17, 2020

Due to the recent outbreak of coronavirus (COVID-19), the Georgia General Assembly has suspended the 2020 legislative session until further notice. The suspension began on Friday, March 13, one day after Crossover Day, the point at which legislation must move from one body of the Legislature to the other.

However, the Legislature did reconvene for a one-day special session on Monday, March 16 to ratify Governor Kemp’s executive order that declared a State of Emergency. It is unclear when or if the General Assembly will reconvene under normal circumstances but they expect to hold another special session on April 15 in order to extend the emergency declaration if required.

This update will cover the government’s response to the COVID-19 outbreak and also review the bills that survived Crossover Day and remain up for consideration when the General Assembly reconvenes.

COVID-19 State of Emergency

As of noon on March 16 there are 121 confirmed COVID-19 cases in the state of Georgia, according to the Georgia Department of Public Health. The plurality of cases are in metro Atlanta with 27 cases in Fulton County, 22 in Cobb County and 10 in DeKalb County. In response to the outbreak, Governor Kemp has declared a State of Emergency. The powers provided to the Governor via declaration and ratification of a State of Emergency significantly increase the ability of the executive branch to fight the outbreak.

Governor Kemp now has new abilities to suspend laws and regulations, assume direct operational control of all civil employees, compel health care facilities to provide services, transfer from any available fund in the state treasury sums as may be necessary to meet the emergency or disaster and provide welfare benefits to citizens.

Under this emergency authority, the Georgia Department of Public Health has regulations in place authorizing it to isolate persons infected with COVID-19, quarantine persons exposed to, or reasonably suspected of having been exposed to COVID-19, require surveillance, including the active and direct active monitoring of carriers of the virus and persons exposed to the virus, require persons to be vaccinated or immunized, examined, and treated, restrict travel into or within the state, limit or cancel public gatherings, and close, evacuate, or decontaminate any facility, or destroy or decontaminate any contaminated materials.

Governor Kemp has stated that he intends to use the broad powers to deploy “all available resources” to contain the spread of the coronavirus. The Governor said Friday he’ll initially use the authority to grant nurses from other states temporary Georgia licenses and lift restrictions on commercial truck drivers. He also called up as many as 2,000 Georgia National Guard troops to active duty and ordered all public K-12 schools to close through at least the end of March.

COVID-19 Judicial Emergency

On Saturday, March 14, Georgia Chief Justice Harold Melton issued a thirty day order declaring a statewide judicial emergency. Essentially, the order reduces but does not shut down court actions, gives litigants relief during this period of time from responding to statutory deadlines, and provides greater flexibility to judges in how to conduct court business. 

Justice Melton, however, recognized that certain “essential” court functions need to continue. That includes where an immediate liberty or safety concern is present, criminal court search warrants, arrest warrants, initial appearances, and bond reviews, domestic abuse temporary protective orders and restraining orders, juvenile court delinquency detention hearings and emergency removal matters and mental health commitment hearings.

To the extent court proceedings are held, he ordered they should be done in a manner to limit the risk of exposure, such as by videoconferencing, where possible.

State Budget

Both the Georgia House and Senate passed the mid-year budget that adjusts what the state expects to spend for the second half of 2020. The mid-year budget, which awaits Governor Kemp’s signature, keeps state government running through June 30. Notably, the final version includes $100 million Kemp requested Wednesday to help the state deal with coronavirus. The additional money is intended for the Georgia Emergency Management Agency and the Department of Public Health to aid in the response effort. Lawmakers also added $5 million into the mid-year budget for hospitals, which they said may face special costs associated with the virus.

In addition to the 2020 mid-year budget, the Legislature also must pass a 2021 budget. The House was able to pass its version of the budget, but the Senate did not take action on it before the session was suspended. Because approving a budget is a requirement of the Georgia Constitution, the General Assembly has to come back before the start of the new fiscal year on July 1. Leaders in both chambers are confident that they will meet the deadline, even if it means returning only for that purpose.

The FY 2021 budget has been hotly debated up to this point. The House draft would give teachers a $1,000 pay raise, half of the $2,000 raise that Governor Kemp requested while adding 2% pay raises for state employees and government workers, which could increase to as much as 5% more for those in high-turnover jobs, including food safety inspectors, prison guards and mental health workers.

The House plan also would restore some of the 1,200 positions Kemp had marked for elimination, including food safety inspectors, child welfare and program eligibility workers, agricultural extension employees, GBI lab scientists and technicians, juvenile justice security staff, and workers who help make sure veterans receive the benefits they earned. Moreover, the House draft includes grants for county health departments that Kemp wanted to cut and money to ensure that GBI crime labs don’t fall behind in testing of rape kits and DNA.

There could be political fallout from the budget fight between the Governor and the Legislature that survives beyond this legislative session. The House passed House Bill 1112 which would limit the Governor’s power to set the revenue estimate each year. The bill would require state agencies to send budget proposals to the House and Senate first rather than the Governor. The House also voted to curtail the Governor’s ability to withhold appropriations specifically determined by the Legislature.

Health Care

Health care has been a central focus for state legislators this session as they attempt to address a health care system in Georgia, especially in rural Georgia, that is increasingly strained. They are particularly focused on three main topics: surprise billing, price transparency and pharmacy benefit managers.

Among those three, surprise billing seemingly has the most momentum. Of the bills introduced to address the surprise billing issue, three have risen to the top and received approval from at least one legislative body: House Bill 789, House Bill 888 and Senate Bill 359.

The House of Representatives passed House Bill 789 on March 3. The bill, which is now assigned to the Senate Health and Human Services Committee, requires insurance companies to maintain an online directory of anesthesiologists, pathologists, radiologists and emergency medicine doctors that are covered by their plans.

The House also passed House Bill 888 by a vote of 164-4 on that same day, March 3. The legislation aims to protect patients from having to pay bills after receiving care at a hospital that is in their insurance network. These bills are currently sent to patients in the event they saw a contract doctor who is out of network at a hospital where they are supposedly covered. In such cases, the insurance company and the provider would be required to sort out the payments through arbitration. HB 888 is currently assigned to the Senate Health and Human Services Committee. Senate Bill 359 sponsored by Senator  Chuck Huftstetler (R-Shannon) is functionally the same language as HB 888. SB 359 passed the Senate unanimously on February 24 and is now in the House Special Committee on Access to Quality Health Care.

In addition to surprise billing, legislators are looking to make changes to the pharmacy industry, specifically pharmacy benefit managers who act as middlemen between insurance companies, pharmaceutical companies and consumers. House Bill 946, which passed the House on March 4, would increase oversight on the industry and bar managers from charging an insurance company more for a drug than it cost from a pharmacy. The Senate passed SB 313 a nearly identical bill on Thursday. Another bill, House Bill 947, would allow the state to study the financial impact of removing pharmacy benefit managers from its Medicaid plan entirely. House Bill 946 has been assigned to the Senate Insurance and Labor Committee while House Bill 947 was assigned to the Senate Health and Human Services Committee. Senate Bill 313 was referred to the House Special Committee on Access to Quality Health Care.

Finally, Senate Bill 303 sponsored by Senator Ben Watson (R-Savannah) passed the Senate on February 25 and has been referred to the House Special Committee on Access to Quality Health Care. The bill aims to provide for greater price transparency for non-emergency health care services. It would require the disclosure of pricing information on insurer websites thereby allowing consumers to compare competitors.

Taxes and Tax Credits

As with any legislative session, taxes are top of mind for legislators. That being said, this year, amidst declining revenues and an upcoming election, revenue is particularly salient. One of the first priorities of the session was to pass House Bill 276, which would put the burden of tax collection on online retailers. Overall the bills seeks to collect sales tax from online and third-party platforms selling retail products, thereby leveling the playing field for Georgia-based brick-and-mortar retailers and increasing revenue for the state. After the bill almost passed last year, a conference committee was appointed from the House and Senate which produced a compromise bill that was approved by both chambers on January 16. On Thursday, January 30 Governor Kemp signed the bill into law. It goes into effect April 1.

In other tax news, the House of Representatives passed a bill that would create a flat tax system in Georgia. Should the bill pass into law all Georgians would be subject to a 5.375 percent tax rate instead of the graduated system in place now where citizens pay between 1 and 5.75 percent depending on income level. The plan, which does include a credit for some low- and middle-income families, would accrue savings disproportionately to the wealthy (those making six figures) and could raise taxes on some lower income families. House Bill 949 is expected to cost state government $250 million per year.

Finally, tax credits have been a hotly debated topic thus far due, in part, to several audits conducted by both the state agencies and universities indicating that the film tax credit may not provide the benefit its supporters purport. Representative Matt Dollar (R-Marietta) introduced House Bill 1037 in part to address those concerns. The bill would require every film production to be audited and would only award tax credits after the audit process is complete. However, the legislation would also expand the tax credit to include companies that broadcast non-recurring sporting events with an economic impact of $50 million or more, such as Super Bowls and the NCAA Final Four basketball tournament. The bill passed the House of Representatives on March 12 and currently awaits action by the Senate Assignments Committee.

Going forward, more consistent review of tax credits may be on the horizon thanks to Senate Bill 302 sponsored by Senator John Albers (R-Alpharetta). The bill would permit the chairmen of the House and Senate tax committees to request independent economic-impact reviews of a few tax credits per year. The bill passed the Senate on February 24 and awaits action by the House Ways and Means Committee.

Transportation

As has been the case for the past few years, addressing Georgia’s transportation needs is a major concern for lawmakers. Part of the solution is raising revenues for transportation spending. That is the aim of House Bill 105 which was originally drafted to create a tax credit for disaster relief funding but now includes 50-cents-per-ride tax on rideshare companies such as Uber and Lyft, taxis and limos. The tax on rideshare would replace the sales tax required under House Bill 276. House Bill 105 which had already passed the Senate was amended to require that the money generated from the new fee – up to $40 million annually, by some estimates – be dedicated to public transportation. The amended bill now returns to the state Senate for a final vote.

Some of the language that found its way into HB 105 was stripped from HB 511 which was a massive rural transit bill pushed last session. House Bill 511 now makes slight changes to the Atlanta Transit Link Authority appointment and voting procedures. It was favorably reported by the Senate Transportation Committee on March 9.

The Senate took action to address another novel part of the transportation system — electric scooters. Senate Bill 159 passed the Senate on February 4 and is currently in the House Transportation Committee. The bill would leave regulation of scooters up to local governments while providing a definition of an electric scooter in state law.

The final major transportation push is related to Georgia’s freight and logistics network. Representative Kevin Tanner (R-Dawsonville) has sponsored two pieces of legislation on the issue, House Resolution 935 to establish the Georgia Freight and Logistics Commission and House Bill 820 to create a line item in the state budget for state investment in rail infrastructure. Both passed the House and were favorably reported by the Senate Transportation Committee.

Education

Three major education bills are working their way through the legislative process. The first, House Bill 444, has received approval from both the House and the Senate. The bill limits state funding for college courses provided to high school students to 30 credit hours. The change to the popular dual enrollment program was spurred by increased costs as enrollment increased. House Bill 444 will now go to the Governor for his signature.

The Senate voted in favor of a piece of legislation, Senate Bill 386, that would expand Georgia’s only private school voucher program. The program aimed at special needs students would be expanded to include students with 504 plans which applies to students with disabilities that do not require special instruction under the Disabilities Education Act. The bill now awaits action from the House Education Committee.

Finally, the Senate approved Senate Bill 367 on March 3, which would reduce the number of tests required of students throughout their K-12 education. Backed by Governor Kemp and State School Superintendent Richard Woods, the bill would reduce the total number of mandatory tests in Georgia’s public schools to 19 from 24. The legislation, which passed the Senate 53-0, cuts four tests from high school and one from the fifth grade.

Foster Care

Led by Governor Brian Kemp and Lt. Governor Geoff Duncan, a significant effort is underway to improve the foster care system in Georgia. Three major bills survived Crossover Day, each introduced to try to improve care for foster children.

House Bill 912 would allow foster parents to leave children in the care of a babysitter for up to three days without having to get approval from the state Division of Family and Children Services (DFCS). Current law limits that time to two days. HB 912 passed the House of Representatives unanimously and awaits action from the Senate Assignments Committee.

House Bill 913 would, among other things, lower the age requirement for potential adoptive parents to 21 from 25. HB 913 passed the House of Representatives and is currently in the Senate Judiciary Committee.

Senate Bill 335, which passed the Senate on February 20, would require judges to prioritize court cases involving children in foster care and asks juvenile courts to better track those cases. It would also allow DFCS to vary the amount of training time foster parents are required to undergo annually based on their experience level. The bill currently sits with the House Juvenile Justice Committee.

Senior Care

Prompted by an Atlanta Journal-Constitution investigative report on the state of senior care in Georgia, House Bill 987 passed the full chamber by a vote of 160-1. The legislation, which is sponsored by Representative Sharon Cooper (R-Marietta), would expand the regulation of senior care facilities and increase fines for violations causing serious physical injury to, or the death of, a resident. Specifically, the bill would (i) require administrators who run assisted living facilities or large personal care homes to receive special training and licenses; (ii) require special certification for memory care units; and (iii) double the minimum fine where a home is cited in relation to death or serious harm. The legislation is now in the Senate Regulated Industries and Utilities Committee.

Two other Senior Care related bills failed to gain approval from either legislative body. House Bill 955 was aiming to help ensure local coroners or medical examiners are notified of unexpected deaths in senior care homes and House Bill 849 called for families to be allowed to install so-called “granny cams” in rooms at nursing homes and assisted living facilities to monitor what’s going on with their loved ones. Neither will remain under consideration.

Coal Ash

Concern over coal ash disposal reached a fever pitch this year as residents in rural Georgia experienced contaminants in their water supply as a result of old, leaky unlined coal ash ponds at Plant Scherer, one of the nation’s largest power plants. Several major bills gained approval from at least one side of the Capitol. House Bill 93, which would require public notice when wastewater is being drained from coal ash ponds into local waterways was approved by the House on March 12 and Senate Bill 123, which would reduce imported coal ash was approved by the Senate on February 24.

Additionally, HB 929, which would require long-term monitoring of groundwater around ash ponds with results of the monitoring made available to the public in clear language, passed the House 113-52 on March 12, the same day that House Bill 959, which would discourage out-of-state coal ash from entering Georgia by raising the fee on coal ash being dumped in landfills, gained approval.

Ethylene Oxide

Two bills requiring companies to publicly report their ethylene oxide emissions, House Bill 927 and Senate Bill 426, passed each of their original chambers – the Georgia House and Senate – but one or the other must pass both chambers in order to be presented to the Governor for signature en route to becoming law. The bills would make it mandatory for facilities to make these notifications if they want to continue operating in Georgia. Reports would be posted on the state Environmental Protection Division’s website. At present, companies only have to report when more than 10 pounds of ethylene oxide is released in a 24 hour period. The newly passed legislation would give businesses 24 hours to report any amount of the gas released.

Elections

The Senate approved a bill sponsored by Senator John Kennedy (R-Macon) to require that election officials take action to address long lines on election day. Specifically, the proposal, which is supported by Secretary of State Brad Raffensperger, states that if lines last more than one hour, county election superintendents would have to split up precincts that have more than 2,000 voters, provide additional voting equipment or hire extra poll workers in the next general election. The legislation also gives election officials greater latitude to provide more voting machines in the event of long lines. But it also gives local officials the latitude to provide fewer voting machines which was cause for concern amongst Senate Democrats.

Business Efficiency

Two major tort reform bills, Senate Bill 390 and Senate Bill 415, failed to crossover to the House this past week. Both would have made major changes to how tort cases were argued and the type of damages that could be awarded.

Another priority of the business community, Senate Bill 110, also hit a roadblock. Senate Bill 110 which would establish a new court specifically for complex business matters was voted down in the Senate on March 5. The measure has been tabled.

Alcohol Delivery

House Bill 879, sponsored by Representative Brett Harrell (R-Snelville), would permit home delivery of beer and wine so long as it is delivered to a person who would have to provide ID showing he/she is of legal age. The measure passed the House of Representatives on March 10 and is in the Senate Regulated Industries and Utilities Committee.

Sovereign Immunity

Representative Andrew Welch (R-McDonough) is leading an effort to allow citizens to file lawsuits against the state to challenge unconstitutional laws. House Resolution 1023 would put a referendum on the statewide ballot asking whether to void the constitutional doctrine of sovereign immunity, which bars lawsuits against the government. The resolution, which needs to be approved by at least a two-thirds vote, passed the House and the Senate Judiciary Committee and now awaits action by the Senate Rules Committee and the full Senate.  

Criminal Justice

House Bill 994, supported by Governor Brian Kemp, which intends to strengthen anti-gangs laws has passed the state House. The legislation would allow prosecutors to ask juvenile judges to transfer gang-tied cases to the adult system. The bill would also mandate that the Department of Juvenile Justice put convicted juvenile gang members through an “evidence-based” gang rehabilitation program.

The legislation, which has seen opposition from criminal justice advocates, passed the House 93-65.

Parental Leave

The House of Representatives passed House Bill 1094 to provide three weeks of paid leave to state employees who are new parents regardless of gender. At present, state employees can take up to 12 weeks of unpaid leave, which employers must offer under federal law. The bill would have no impact on private companies. It is currently in the Senate Insurance and Labor Committee.

Environmental Clean-Up Dedicated Fees

The Senate voted unanimously on March 9 in favor of House Resolution 164 which had already passed the House with over 2/3rds of the chamber in support. The Resolution would put a constitutional amendment on the November ballot to dedicate tire and solid waste fees to environmental cleanup projects. Georgians pay a $1 disposal fee on each replacement tire they buy, and counties pay a solid waste disposal fee of 75 cents per ton. Under state law, the General Assembly can’t formally dedicate fee money to specific causes without voters approving a constitutional amendment to do so.

Vaping

Both the Senate and the House have considered legislation pertaining to nicotine vaping devices. The Senate passed Senate Bill 375 which would require e-cigarette education to be added to mandatory drug and alcohol education programs in schools. It would also raise the legal age to buy tobacco products under state law from 18 to 21.

The House voted against a proposal, House Bill 364, that would have added a tax to vaping and other nicotine products.

Gambling

After heavy speculation prior to legislative session and industry optimism in the early weeks, House Resolution 378 which aimed to amend the constitution to allow for casino gambling and betting failed to get a vote on the House floor. There is talk amongst sports-betting supporters that separate language to legalize this narrow gambling practice could find its way as an amendment onto existing legislation but it is thus far unclear how likely that effort would be to succeed.

Conclusion

Until further notice, the Georgia General Assembly is suspended. Lawmakers have agreed to another special session on April 15 in order to extend the emergency declaration if required and possibly finalize a fiscal year 2021 budget. That being said, the Governor has the authority to renew the declaration unilaterally if lawmakers are unable to return to the Capitol due to the COVID-19 virus. Until Georgia and the country writ large get a handle on the coronavirus, legislation will not proceed. Dentons Georgia Legislative team will continue to monitor the situation at the Georgia Capitol as it evolves. Please let us know if you have any questions or concerns regarding the state’s response to coronavirus or any of the legislative efforts mentioned above.

Georgia Chief Justice Harold Melton Issues Statewide Judicial Emergency Order

The different branches of the Georgia State Government are moving in quick succession to try to respond to the coronavirus pandemic. On Thursday, the General Assembly indefinitely suspended its Regular 2020 Session. On Friday, Governor Kemp declared a State of Emergency giving him broad powers to combat the health care crisis. 

Georgia Chief Justice Harold Melton has now issued a thirty day ORDER DECLARING STATEWIDE JUDICIAL EMERGENCY. Essentially, the order reduces but does not shut down court actions, gives litigants relief during this period of time from responding to statutory deadlines, and provides greater flexibility to judges in how to conduct court business. 

Pursuant to OCGA § 38-3-61 & 62, Justice Melton suspended, tolled, extended, and otherwise granted relief from any:

(1) statute of limitation; (2) time within which to issue a warrant; (3) time within which to try a case for which a demand for speedy trial has been filed; (4) time within which to hold a commitment hearing; (5) deadline or other schedule regarding the detention of a juvenile; (6) time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury; (7) time within which to file a writ of habeas corpus; (8) time within which discovery or any aspect thereof is to be completed; (9) time within which to serve a party;

(10) time within which to appeal or to seek the right to appeal any order, ruling, or other determination; and (11) such other legal proceedings as determined to be necessary by the authorized judicial official.

Justice Melton, however, recognized that certain “essential” court functions need to continue including:

(1) where an immediate liberty or safety concern is present requiring the attention of the court as soon as the court is available; (2) criminal court search warrants, arrest warrants, initial appearances, and bond reviews; (3) domestic abuse temporary protective orders and restraining orders; (4) juvenile court delinquency detention hearings and emergency removal matters; and (5) mental health commitment hearings.

Justice Melton also expressly ordered that criminal trials that were going on with an empaneled jury were to continue absent a showing of “good cause” to suspend or declare a mistrial. The order is silent as to ongoing civil trials presumably leaving these trials to the discretion of the presiding judge hearing the case. Finally, to the extent court proceedings are held, he ordered “they should be done in a manner to limit the risk of exposure, such as by videoconferencing, where possible.”

Within Georgia law, there are additional procedures in place to permit appeals where individuals believe this emergency order creates abuses to an individual’s legal rights. If you have any specific questions or concerns please let us know and we will follow up with further information. 

Stay up-to-date with all of Dentons’ insights and guidance by visiting our US COVID-19 hub here.

Georgia Governor Brian Kemp Declares State of Emergency To Deal With Coronavirus Pandemic And Calls a Special Session of the General Assembly

Georgia Governor Brian Kemp yesterday declared a State of Emergency in order to respond to the coronavirus pandemic and called the Georgia General Assembly back into a Special Emergency Session on Monday, March 16, 2020 at 8:00 am to ratify his action.  This action occurred only a day after the General Assembly had suspended indefinitely its regular 2020 session due to the world wide coronavirus outbreak.

Under O.C.G.A. §38-3-51 the Governor can declare a state of emergency due to a health crisis but must also call the General Assembly into a special session “for the purpose of concurring with or terminating the public health emergency.”  The state of emergency remains in effect for 30 days unless expressly extended by the Governor.

Among the powers enumerated by O.C.G.A. §38-3-51, the state of emergency gives the governor considerable power to deal with our present health care crisis including:

  • assume direct operational control of all civil forces and helpers in the state;
  • Suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;
  • Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the emergency or disaster;
  • Compel a health care facility to provide services or the use of its facility if such services or use are reasonable and necessary for emergency response. The use of such health care facility may include transferring the management and supervision of the health care facility to the Department of Public Health for a limited or unlimited period of time not extending beyond the termination of the public health emergency;
  • transfer from any available fund in the state treasury such sum as may be necessary to meet the emergency or disaster; and
  • provide welfare benefits to the citizens of this state in the form of grants to meet disaster related necessary expenses or serious needs of individuals or families adversely affected by an emergency.

Furthermore, in regards to the Department of Public Health, O.C.G.A. §38-3-51 (i)(1)  give the governor the power to direct the department to undertake the following:

  • Planning and executing public health emergency assessments, mitigation, preparedness response, and recovery for the state;
  • Coordinating public health emergency responses between state and local authorities;
  • Collaborating with appropriate federal government authorities, elected officials of other states, private organizations, or private sector companies;
  • Coordinating recovery operations and mitigation initiatives subsequent to public health emergencies;
  • Organizing public information activities regarding state public health emergency response operations; and
  • Providing for special identification for public health personnel involved in a public health emergency.

Under this emergency authority, the Georgia Department of Public Health has regulations in place authorizing it to do the following:

  • Isolate persons infected with communicable diseases or conditions likely to endanger the health of others, until they are found to be free of the infectious agent or disease;
  • Quarantine persons exposed to, or reasonably suspected of having been exposed to, a communicable disease, until they are found to be free of the infectious agent or disease;
  • Require surveillance, including the active and direct active monitoring of carriers of disease and persons exposed to, or reasonably suspected of having been exposed to, a communicable disease, until it is determined that they no longer pose a threat of spreading disease;
  • Require persons to be vaccinated or immunized, examined, and treated;
    • Except as provided in subsection (2) below, an individual shall be exempt from vaccination or immunization if the person, or the parent or legal guardian in the case of a minor, furnishes an affidavit that complies with DPH Rule 511-2-2-.07.
    • The Department may require vaccination or immunization of those who object on the grounds of religious beliefs if it is determined that an epidemic or the threat of an epidemic exists;
  • Restrict travel into or within the state;
  • Limit or cancel public gatherings; and
  • Close, evacuate, or decontaminate any facility, or destroy or decontaminate any contaminated materials, that the Department reasonably suspects may pose a danger to public health.

Ga Comp. R. & Regs. 511-9-1-.03

Within Georgia law and state regulations, there are additional procedures in place to implement and enforce these broad emergency powers and prevent abuses.  If you have any specific questions or concerns please let us know and we will follow up with further information. 

Georgia Legislative Update – March 9, 2020

Overview

In the midst of the state’s 2020 legislative session, Georgia has joined eighteen other states with confirmed cases of the COVID-19 virus, commonly known as coronavirus. Leading the state’s response to the outbreak are Department of Public Health Commissioner Kathleen Toomey and Governor Brian Kemp’s 18-member coronavirus task force. The Governor has stressed that the risk to Georgians remains low but that he does expect additional cases. 

Meanwhile the state legislature has been hard at work moving bills through the legislative process with an eye to March 12, when bills must cross over from one legislative chamber to the other or they will no longer be under consideration. 

Budget

The Senate voted to approve a midyear budget that supports many of the same appropriations adopted by the House of Representatives. Both the Senate and House departed from the Governor’s proposals. Specifically, both chambers opted to restore funding for public defenders, food safety inspectors, accountability courts, Morehouse and Mercer medical schools, and county public health departments. 

Lawmakers will now turn their attention to the Governor’s proposed $28.1 billion budget for FY 2021. That budget includes $300 million in spending cuts as well as pay raises for teachers and state employees earning less than $40,000 per year. Notably, several high-ranking members of the House, including Speaker David Ralston (R-Blue Ridge), have expressed a preference for cutting income taxes over raising teacher pay. 

Elections 

Two bills that would alter the way Georgians vote, both with Republican backing, are under consideration this session. The first, Senate Bill 463, would require election officials to take action to address long lines on election day. Specifically, the proposal, which is supported by Secretary of State Brad Raffensperger, states that if lines last more than one hour, county election superintendents would have to split up precincts that have more than 2,000 voters, provide additional voting equipment or hire extra poll workers in the next general election. The legislation also gives election officials greater latitude to provide more voting machines in the event of long lines. 

The other elections bill, House Bill 520, would give cities and counties the option to move local general elections from May to November to take advantage of the increased turnout that results from national election cycles. 

Education 

Backed by Gov. Kemp and State School Superintendent Richard Woods, Senate Bill 367, which would reduce the total number of mandatory tests in Georgia’s public schools to 19 from 24, passed the Senate last Monday. The legislation, which passed the Senate 53-0, cuts four tests from high school and one from the fifth grade. The legislation now heads to the House of Representatives. 

The House and the Senate have agreed on a legislation to limit state-funding college courses for high school students to 30 credit hours. The change to the popular dual enrollment program was spurred by increased costs as enrollment increased. House Bill 444 will now to go the Governor for his signature. 

The Senate Education and Youth Committee voted in favor of a piece of legislation, Senate Bill 386, that would expand Georgia’s only private school voucher program. The program aimed at special needs students would be expanded to include students with 504 plans which applies to students with disabilities that do not require special instruction given to students identified under the Disabilities Education Act. 

Senior care 

Prompted by an Atlanta Journal-Constitution investigative report on the state of senior care in Georgia, House Bill 987 passed the full chamber by a vote of 160-1. The legislation, which is sponsored by Rep. Sharon Cooper (R-Marietta), would expand the regulation of senior care facilities and increase fines for violations causing serious physical injury to, or the death of, a resident. Specifically, the bill would (i) require administrators who run assisted living facilities or large personal care homes to receive special training and licenses; (ii) require special certification for memory care units; and (iii) double the minimum fine where a home is cited in relation to death or serious harm. 

Tax credits

State tax credits have become a topic of conversation under the Gold Dome after several reports questioned the economic benefits of the film tax credit, an economic incentive credited with sparking the robust film industry in Georgia. One piece of legislation, House Bill 1037, sponsored by Rep. Matt Dollar (R-Marietta) would require every film production to be audited and would only award tax credits after the audit process is complete. The legislation would also expand the tax credit to include companies that broadcast non-recurring sports events with an economic impact of $50 million or more, such as Super Bowls and the NCAA Final Four basketball tournament. The House Ways and Means Committee has yet to take action on the bill. 

Meanwhile, House Ways and Means removed from the books a tax break that gave credits to employers that hired parolees. According to Chairman Brett Harrell (R-Snellville) the credit was going unused. 

Further scrutiny of tax credits could intensity if Senate Bill 302 by Sen. Jon Albers (R-Roswell),  which passed the Senate unanimously and is currently awaiting action by the House Ways and Means Committee, passes the full House. The bill would permit the chairmen of the House and Senate tax committees to request independent economic-impact reviews of a few tax credits a year. 

Tort reform

A major battle is brewing between the business and legal communities, specifically the Georgia Trial Lawyers Association, over a renewed fight over tort reform. State Senator Steve Gooch (R- Dahlonega) introduced two tort reform bills, Senate Bill 390 and Senate Bill 415. The former was assigned to the Senate Judiciary Committee and the latter to the Insurance and Labor Committee. Several trial lawyers are members of the Senate Judiciary Committee, so the hopes of the business community most likely lie with SB 415. 

One provision of SB 415 would prevent trial lawyers from arguing the monetary value of a victims pain and suffering or, in a wrongful death case, the value of a life. Additionally, the bill would make changes to premises liability in cases where someone is attacked on a property owned by a business or an individual and then sues the owner for not doing enough to prevent the crime. In such cases, the victim would be entitled to damages only when the landowner “had actual knowledge of the specific threat of imminent harm” and could have reasonably prevented it. 

Transportation 

The Senate approved a bill that (i) offers farmers a state income tax exemption on disaster relief aid and (ii) includes a 50-cents-per-ride tax on rideshare companies such as Uber and Lyft, taxis and limos to fund rural transit expansion. The per-ride tax, which will fund rural transit expansion. which will take effect on April 1, would replace the sales tax on rideshares and taxis. House Bill 105 which was adopted in the Senate by substitute will now return to the House for further consideration. 

Alcohol Delivery 

House Bill 879, sponsored by Rep. Brett Harrell (R-Snelville), which would permit home delivery of beer and wine so long as it is delivered to a person who would have to provide ID showing he/she is of legal age. The measure passed the House Regulated Industries Committee and is awaiting a full vote by the House of Representatives. 

Health care

House Bill 888 passed the House of Representatives by a vote of 164-4. The legislation aims to protect patients from having to pay bills after receiving care at a hospital that is in their insurance network. These bills are currently sent to patients in the event they saw a contract doctor who is out of network at a hospital where they are covered. In such cases, the insurance company and the provider would be required to sort out the payments through arbitration. 

Additionally, the full House passed House Bill 789, which requires insurance companies to maintain an online directory of anesthesiologists, pathologists, radiologists and emergency medicine doctors that are covered by their plans. 

In addition to surprise billing, legislators are looking to make changes to the pharmacy industries, specifically pharmacy benefit managers which act as middlemen between insurance companies, pharmaceutical companies and consumers. House Bill 946 would increase oversight on the industry and bar managers from charging an insurance company more for a drug than it cost from a pharmacy. The Senate passed SB 313 a nearly identical bill on Thursday. Another bill, House Bill 947, would allow the state to study the financial impact of removing pharmacy benefit managers from its Medicaid plan entirely. 

Maternal Mortality 

Republican House leaders are getting behind an effort to authorize the Georgia Department of Community Health to seek a federal waiver to expand Medicaid from two to six months following childbirth to address postpartum depression, high blood pressure and cardiac conditions.  

Conclusion

The legislature is speeding toward Crossover Day on March 12, when legislation under consideration has to pass at least one chamber or it is no longer eligible to pass into law this legislative session. As such, we expect a flurry of activity this week prior to the Thursday deadline.  Meanwhile, the Governor and the coronavirus task force continue to monitor the situation in Georgia and have committed to continuous sharing of information with the public.