Samuel Olens

Time for Ga., nation to rediscover ties that bind

Ed. note: This article was originally published in the AJC. Click here to view.

As Charles Dickens wrote so eloquently, “it was the best of times, it was the worst of times…”

On Wednesday, Georgia started the day recognizing the elections of the state’s first Black and the first Jewish United States senators. As active members of state Republican politics, we wish them well and hope they will seek to represent our state and country’s best ideals.

Only hours later, however, the nation was shocked and dismayed when thugs attacked the very heart of the American experiment in democracy in a shameful attempt to subvert a free and fair election.

Historian Theodore H. White once wrote: “Heroes and philosophers, brave men and vile, have since Rome and Athens tried to make the transfer of power work effectively; no people has succeeded at it better, or over a longer period of time, than the Americans.” Make no mistake: the events earlier in the week at the Capitol were acts of domestic terrorism and sedition intended to arrest the peaceful transfer of power, which is the cornerstone of a free people and government.

Our Republican Party — created on the principle of Thomas Jefferson’s vision of limited government, Abraham Lincoln’s drive to eliminate slavery, and Ronald Reagan’s big-tent philosophy — must respond to the trauma inflicted upon the nation and our democracy this week.

As fair-minded Republicans, we recognize that our friends in the Democratic Party similarly seek to build a more perfect union. We just disagree on the means.

Georgians can look to their past leaders, from Democrat Sam Nunn and Republican Johnny Isakson, who understood that successful politics is about addition and not division. Now is a time for reconciliation, a moment that demands a higher standard of leadership.

Statesmanship, not partisanship, must be the norm in these difficult times. Words may not hurt you, but they can encourage harm. Let’s not use this abyss for more threats and insults.

We must seek our better angels, not retweets. Georgia and these United States need two strong parties that lead on principles, seeking hope and opportunity, not fear and resentment.

Let us work together for a greater country, one where all Americans are truly equal under the law. Let’s fight to restore a nation in which political institutions are preserved, election results are respected, and common decency is required.

As U.S. Senator Ben Sasse, R-Nebraska, stated, “The American people are tough, our Constitutional order is strong, and we will meet this moment with strength and grace.” Following the rule of law, we will be stronger and successfully lead our state, nation, and world to much greater heights.

Edward Lindsey is a former Georgia House Majority Whip, Sam Olens is a former Georgia Attorney General and Eric Tanenblatt is former chief of staff to former Gov. Sonny Perdue. All three are now with the global law firm Dentons.

Georgia Election Review 2020

Introduction

In the aftermath of the 2020 election one thing is clear: Georgia is a swing state. Ever since Stacey Abrams came within 55,000 votes of pulling off the first statewide Democratic victory in Georgia since Zell Miller’s Senate election in 2000, Democrats in Georgia have been calling for further national party investment in the Peach State. The argument, appears vindicated on Friday morning with Vice President Joe Biden holding a narrow lead in the state by just over 1,500 votes, after several Atlanta counties finished absentee ballots. What’s more, the control of the United States Senate lies in the hands of Georgia voters as two US Senate seats appear headed toward January runoffs.

After three days of dominating the headspace of pundits and political junkies alike, Georgia is poised to remain the center of the political universe for the next two months.

United States Presidential

Source: New York Times

Joe Biden holds a lead of 1,579 votes as of 10:10am on Friday November 6th. Former Vice President Biden overtook President Trump thanks to an unprecedented large number of absentee mail ballots in Democratic strongholds such as Fulton, DeKalb, Clayton, Gwinnett, and Chatham Counties. Throughout Wednesday and Thursday, the number of outstanding votes varied causing a wide range of predictions of who would win the state. But as the counts trickled in Vice President Biden consistently inched closer winning 80-90 percent of absentee mail ballots in Democratic counties and even squeaking out absentee ballot victories in many deep red counties.

The counting of ballots was slow but steady. On Wednesday morning, with 93 percent of the vote accounted for President Trump led by about 117,000 votes. By Wednesday night the lead had shrunk to just 28,827 votes with 95 percent of the vote counted. From Wednesday night to Thursday morning the lead shrunk further as Fulton County absentee votes continued to be counted. By 11am on Thursday President Trump’s lead was just 18,146 votes shrinking to 14,000 by 2pm. By midafternoon Thursday Vice President Biden needed about 63 percent of outstanding votes to overtake the President.

As Thursday wore on Fulton County finalized its vote at which point the President’s lead shrunk to just 1,902 with the majority of outstanding votes in Clayton and Gwinnett’s Counties, two heavily Democratic counties south of Atlanta. Clayton County counted through the night and as a result by 3:40am on Friday morning President Trump’s lead was just 463 votes. Finally, at around 5:30am on Friday morning, Clayton County’s latest results pushed Joe Biden into the lead with a 917 vote advantage.

The race will remain in flux until provisional, military and cured ballots are tabulated and even then it will likely go to a re-count. If the results hold, Joe Biden is on track to be the first Democratic Presidential candidate to carry the Peach State since Bill Clinton in 1992.

United States Senate

Both United States Senate races will be decided on January 5, and more likely than not, decide which party controls the United States Senate. Incumbent Senator David Perdue, as of this writing, holds a two percentage point lead over Democrat Jon Ossoff. However, Senator Perdue is below the fifty percent threshold at 49.8 percent. State law requires any race where neither candidate receives over 50% go to a run-off. Like President Trump, Senator Perdue was holding a 50 percent plus one lead for much of the race before losing ground as metro absentee ballots were counted. Nevertheless, he goes into the runoff with a slight lead in the votes.

Source: New York Times

The second Senate race in Georgia, a special election to replace longtime Georgia Senator Johnny Isakson will also head to a runoff, as expected. Reverend Raphael Warnock, the Democratic front runner received 32.9 percent of the vote and will face Incumbent Republican Kelly Loeffler who received 26 percent of the vote. Loeffler, who was appointed by Governor Kemp upon Senator Isakson’s retirement, bested fellow Republican Doug Collins after a bruising campaign for loyal Republican voters, while Reverend Warnock was able to consolidate much of the Georgia and National Democratic establishment behind him.  

The fact that the outcome of the two US Senate elections may decide the fate of the United States Senate guarantees not only intense campaigning but also a flood of money from all around the country.

United States House

Both of Georgia’s competitive United States House races were won by the Democratic candidates. Incumbent Democratic Representative Lucy McBath beat Karen Handel handily in Georgia’s 6th Congressional District. The 6th District, former home to United States House Speaker Newt Gingrich, continues its trend towards Democrats.

In Georgia’s 7th Congressional District Democrat Carolyn Bourdeaux beat Republican Rich McCormick. Bourdeaux narrowly lost to formerly Congressman Rob Woodall in 2018 who declined to run for reelection.

Georgia Public Service Commission

With a few thousand ballots outstanding statewide, two seats on the Public Service Commission could also be headed for a runoff. Incumbent Commissioner for District 1 Jason Shaw currently has a four percentage point lead over challenger Robert Bryant but is sitting at exactly fifty percent of the vote. Similarly, Incumbent District 4 Commissioner Lauren McDonald is at fifty percent against challenger Daniel Blackman. As the final votes are tallied we will know whether we can add to PSC races or a separate state runoff on December 1.

Georgia State Legislature

While Democrats made serious enrodes into Georgia in the presidential and congressional levels, their efforts under the Gold Dome were less successful. With redistricting on the horizon, Democrats were optimistic about their chances to flip the State House and make incremental gains in the State Senate. In reality, the strength of down ballot Republicans largely prevailed.

In the House, as of this writing three incumbent Republicans are on track to lose as well as one incumbent Democrat, a net gain of two seats for Democrats. Accordingly, Republicans will maintain a majority 103 to 77. The Democratic incumbent who appears to have lost, is the current House Minority Leader, Bob Trammel. Therefore, there will be a race for Democratic caucus leadership in the near future. On the Republican side current Speaker, David Ralston will likely be re-elected, but he may face a challenge from the right wing of his party.

Democrats picked up two Senate seats with Democrat Nikki Merritt beating incumbent Republican PK Martin in the 9th District and Democrat Michelle Au filling the vacant seat in the 48th District. Republicans maintain a strong majority in the Senate 34 to 22.

Gwinnett County Commission

Democrats swept the three County Commission elections in Gwinnett County, a rapidly diversifying suburb of Atlanta. Democrat Kirkland Carden bested Republican Laurie McClain by about 10,000 votes for the District 1 seat while Democrat Jasper Watkins III beat Republican Ben Archer by about 22,000 votes for the District 3 seat. Additionally, the County Commission will be led by Democrat Nicole Love Hendrickson after handily defeating Republican David Post for Commission Chair.

The new Sheriff and District Attorney are also Democrats.

Cobb County Commission

In addition to taking control of Gwinnet County government, Democrats had an equally productive election cycle in Cobb County, a formerly Republican stronghold. Democrat Lisa Cupid beat Incumbent Republican County Chairman Mike Boyce by about 20,000 votes. The District 2 race was, and remains, much closer. At present Democrat Jerica Richardson is leading Republican Fitz Johnson by about 400 votes. While that is unlikely to change there are still outstanding votes. Monique Sheffield won the Democratic Primary and was unopposed for the District 4 seat. In all likelihood, the Cobb Commission will have 3 Democratic Commissioners and 2 Republican Commissioners.

Cobb will also have a new Democrat Sheriff and District Attorney.

Conclusion

The apparent narrow victory by Vice President Biden at the top of the ticket has Georgia Democrats smiling and down ballot State House races give Republicans some solace. Both parties, however, have little time to ponder the election’s meaning in the short run with high profile runoffs cranking up immediately and the first campaign runoff ads already airing.

Georgia Legislative Update – August 7, 2020

The 40 day period after the end of the legislative session for the Governor to sign or veto bills ended on August 5th. After vetoing 14 bills in 2019, Governor Kemp only rejected four bills from the 2020 legislative session. Each veto received an accompanying statement describing the primary reason for disagreeing with the legislation which passed both houses of the Georgia Legislature.

The vetoes are as follows:

  1. House Bill 935 which would have created the Recorder’s Court of Gwinnett County. The bill was vetoed at the request of the bill’s sponsor.
  • House Bill 991 which would have created the Healthcare Transparency and Accountability Oversight Committee. The Governor vetoed the legislation out of an apparent concern for the separation of powers. In part, he argued that the Committee would supplant the authority of the Board of Public Health and would blur the lines between the General Assembly and the Executive branch given such boards are considered to be part of the executive branch of government.
  • Senate Bill 306 which would have enacted the Audiology and Speech-Language Pathology Interstate Compact was vetoed by the Governor in part because the Georgia Occupational Regulation Review Council did not review and approve the legislation as is statutorily mandated and additionally, there was no fiscal analysis to determine associated costs.
  • Senate Bill 504, which would create a referendum in Glynn County on the question of whether or not to abolish the Glynn County Police Department was vetoed because the Governor signed a similar, binding bill calling a referendum on the same topic.

The Governor issued one signing statement on House Bill 105 concerning disagreements as to whether the bill would create a tax exemption for income received as payments from a federal disaster relief or assistance grant program. The Governor noted that it was not clear whether or not the bill passed both houses with the same language. As such, he is calling a special session to rectify the situation.

The Governor signed several significant pieces of legislation including Senate Bill 359 which limits most negligence suits related to COVID-19 as long as companies follow social distancing, disinfection and other safety protocols outlined by public health officials, House Bill 838 which grants police new protections related to “bias motivated intimidation,” and a bill that will allow for home delivery of alcohol. The Governor previously signed into law the Georgia Hate Crimes bill.

Finally, the Governor has stated that he intends to call a Special Session of the General Assembly to clear up any technical concerns over HB 105, which grants a state tax exemption on federal aid received by Hurricane Michael victims. Under the Georgia Constitution, a Special Session can only deal with those issues specifically cited by the Governor in his official call; however, there is speculation that the Governor may add additional issues to the list of items the General Assembly can address, in particular the Budget.  Therefore, stay tuned!

Georgia 2020 Legislative Wrap-up

After a COVID-19 induced hiatus the General Assembly returned to Atlanta for a two week sprint to Sine Die. While the main focus was passing a budget under significant revenue shortfalls the General Assembly was able to pass several other pieces of legislation including a historic hate crimes bill, surprise billing restrictions and two constitutional amendments among others.

Now that the 2020 session has officially ended legislators will start ramping up for what is sure to be a contentious election season.

1. Budget 

The Georgia General Assembly temporarily adjourned in March without fulfilling its one constitutional obligation — passing a budget. They completed that task as the 2020 special session closed, a day before the start of the new fiscal year. Gov. Brian Kemp promptly signed the budget for Fiscal Year 2021 on Tuesday June 30th finalizing the state’s $26 billion spending plan which includes about $2.2 billion in cuts.

Some highlights of the updated budget include:

K-12 Public Education

  • $950 million cut from the Quality Basic Education program, the formula used to calculate state spending for K-12 public education
  • $142 million added for enrollment growth and teacher training
  • $8.8 million added to the Governor’s Office of Student Achievement

Higher Education

  • $242 million cut to schools in the University System of Georgia and $36 million cut to schools in the Technical College System of Georgia
  • 12 percent cut to Adult Education
  • 11 percent cut to agricultural programs including the Cooperative Extension Service
  • $11 million in cuts to Dual Enrollment expected from the 30-hour cap and limits on courses students can take created in HB 444
  • $1 million added to the REACH Georgia scholarship program, a needs-based mentoring and scholarship program; all other state-funded scholarships will see a 10 percent cut

Behavioral Health and Developmental Disabilities

  • $91 million cut to the Department of Behavioral Health and Developmental Disabilities budget
  • $22.7 million cut to child and adolescent mental health services, including prevention programs and supported education and employment services
  • $7.2 million cut to adult mental health services, including cuts to core behavioral health services, reductions in peer workforce training and services and cuts to housing vouchers for people with mental illnesses
  • $5.7 million cut to adult substance abuse services, mostly for funds that would expand residential treatment services

Community Health

  • Total state funding increased by $178 million, mostly to account for higher projected growth for Medicaid
  • $19.7 million added to provide six months of Medicaid coverage for new mothers; this coverage extension must still receive federal approval
  • $12 million added to increase funding available for Rural Hospital Stabilization grants

Public Health

  • $8.2 million in cuts to the Department of Public Health budget
  • Funding restored for grants to local health departments
  • $2.3 million reduction in funding for trauma center readiness and uncompensated care

Human Services

  • $34 million cut to the Department of Human Services (DHS) budget
  • $46 million cut in Temporary Assistance for Needy Families (TANF) funds
  • $3.7 million in cuts to vacant positions in child welfare
  • $3 million in cuts to vacant positions at the state office for DHS

2. Hate Crimes Bill

On Friday June 26th, Gov. Brian Kemp signed a hate-crimes measure into law. As such, Georgia is no longer on the ever-shrinking list of states without hate crime legislation. The law allows for enhanced criminal penalties to be levied against those who target their victims on the basis of race, gender, sexual orientation, sex, national origin, religion, or physical or mental disability.

The bill cleared the final hurdle after Senate leaders abandoned efforts to treat police officers as a protected class.

The Hate Crimes Bill passed the legislature on a wave of public support led by Georgia’s most significant businesses and political leaders. The Dentons Public Policy team played a leading role in the effort as lobbyists for the Anti-Defamation League.

3. Safe Harbor Bill

Georgia will join a short list of states that are proactively protecting businesses from civil liability related to the COVID-19 virus. Senate Bill 359 passed both houses of the state legislature and now awaits the signature of the Governor.

The liability legislation would let Georgia businesses and hospitals waive liability for coronavirus-related claims so long as they post certain warning signs except in cases where the entity is found to have committed “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”

4. Fee Dedication

This November, Georgia voters will decide on a constitutional amendment that would give lawmakers the power to require fees be spent for the purpose that they were originally dedicated. This issue is often referred to in the context of tire fees.

If you buy a new tire in Georgia, there’s a $1 fee that gets tacked onto the bill, called the Scrap Tire Management Fee. It’s supposed to go toward cleaning up illegal tire dumps in the state and other recycling and trash programs. But often, lawmakers have directed more than $50 million from the scrap tire fee to Georgia’s general fund, according to the Association County Commissioners of Georgia (ACCG), which is Georgia’s county association.

The same can be said about the fee that the state collects at landfills. The money is intended for hazardous waste site cleanup, but according to the ACCG, about $100 million from that fund has ended up in the general fund in the past 10 years.

The constitutional amendment, if approved by voters, would give lawmakers the power to specifically dedicate certain tax dollars to specific uses.

5. Sovereign Immunity

In addition to the constitutional amendment on fee dedication, Georgians will also vote on whether to make it easier to sue the state and local governments under a proposed constitutional amendment given final passage Tuesday by the state House. The lawmakers were reacting, in part, to a state Supreme Court decision that state and local governments can only be sued if they have waived a legal doctrine called sovereign immunity.

The amendment would allow Georgians to sue in state court to protect their rights and ensure governments follow the law, but would not allow judges to award damages or attorney’s fees. The amendment would also prohibit people from suing individual officials within a government.

Former Gov. Nathan Deal and Gov. Brian Kemp both vetoed previous legislative attempts to broaden the grounds for suits against the government. But the Governor has no authority to veto a proposed constitutional amendment.

6. Surprise Medical Bills

Lawmakers passed legislation that now awaits the Governor’s signature to limit unexpected medical bills. Gov. Brian Kemp is expected to sign after naming surprise billing reform as one of his top priorities for the 2020 session.

The legislation is intended to protect Georgians from unexpected out of network bills from physicians performing medical procedures at “in-network” facilities. Legislators and consumer advocacy groups say if House Bill 888 becomes law, it will lower health care costs for many patients, add pricing transparency, and remove patients from billing negotiations between insurance companies and health care providers. 

Notably, the bill focuses strictly on services – both emergency and non-emergency – from an out-of-network provider at in-network facilities. It prohibits insurance companies from surprise billing for emergency services even if the health care provider is outside of the company’s coverage network. Patients are supposed to also receive an estimated cost for any procedure scheduled outside of their covered hospital system. 

7. Alcohol Delivery

A bill allowing home delivery of beer, wine, and liquor passed the Georgia legislature and will become law pending Governor Kemp’s signature. House Bill 879, would permit beer, wine, and liquor to be delivered directly to people’s homes from restaurants, bars, convenience stores, grocery stores and package stores.

The bills requires alcohol home deliveries to only be accepted by someone 21 years or older and with proper ID. The bill leaves the decision to allow for home delivery up to local municipalities.

Conclusion

Georgians are rightly examining closely the actions and inactions of its state and local governments this summer as we continue to seek ways to contain the COVID-19 pandemic, restart our ravaged economy, and address fundamental questions over race and proper law enforcement. The General Assembly attempted to address many of these concerns but more work will clearly need to be done when it returns six months from now for its 2021 session.

Between now and then, however, we have a spirited election in November. Georgia is clearly viewed by both parties as an electoral swing state. Not only is the state likely to be in contention on the presidential level but with two close US Senate races, three open Congressional seats, and Democrats looking to either narrow or erase entirely Republicans fifteen seat majority in the State House, a political battle royal lies ahead over the next few months.

State Attorneys General and Unfair or Deceptive Acts or Practices (UDAP): What to expect in the wake of COVID-19

Almost every state has its own deceptive and unfair trade practices law (UDAP), enforced by that state’s attorney general (AG). No fraud need be involved. The enforcement is civil, not criminal, but the statutory civil fines can be steep. The Federal Trade Commission (FTC) has ceded much of the enforcement to the states. In the wake of COVD-19, in addition to price-gouging, there will likely be many new enforcement actions against corporations who are alleged to have participated in unfair, deceptive or misleading acts that draw the attention of AGs. 

In some instances, these enforcement actions will involve multistate investigations in which sizeable numbers of attorneys general join together to investigate and possibly litigate. Some examples of areas that may face scrutiny include the following:

Health Care: Off-Label Drug Use

Off-label prescriptions, or the use of pharmaceutical drugs for an unapproved indication or in an unapproved dosage, dosage form or age group, is generally legal and frequently used by healthcare providers.

While in general there is nothing illegal in the off-label use of prescription drugs by doctors, marketing of pharmaceuticals or use of a drug for purposes outside of regulatory approvals is prohibited in most cases, and pharmaceutical companies have frequently been the subject of state AG investigations for doing so. As the race to find treatments for COVID-19 continues to accelerate, it is likely that representatives of some pharmaceutical companies will face scrutiny for promoting off-label use with hospitals and doctors.

Hotels and Leisure

Norwegian Cruise Lines is already being investigated under UDAP based on alleged communications from company employees to customers who prepaid for cruises, to the effect that the Norwegian Cruise Line ships had been sanitized, and so there was nothing to fear from COVID-19 in taking the planned cruise. The company allegedly had ample notice that its “sanitation” was insufficient to prevent the spread of the virus.

Advertising

Companies that host advertisements designed to sell products on their internet sites and take a fractional share of the sales revenue or profits garnered from the ads can be held responsible for misleading statements in the ads or misleading information about the charges to customers. This is true even in instances in which the seller/advertiser is located overseas and out of reach of a US enforcement action. Increased online sales suggest that these kinds of investigations are likely to increase. For example, with a huge surplus of used cars now on the market for the foreseeable future, AG investigations of false, misleading or deceptive advertising in online advertisements for used cars likely will increase, as well as investigations of misleading auto financing proposals – areas of traditional active UDAP enforcement.

Dentons’ State Attorney General practice is a full-service, nationwide practice to advise and assist clients when dealing with state AGs and their staff. If you have questions or an interest in more information on any of the items above and would like to discuss, please contact State AG practice co-chairs Thurbert Baker and Bill McCollum.

Related Information

Please also view Dentons’ recently published alert: “U.S. Food and Drug Administration, Federal Trade Commission Step-Up Enforcement of Product Misbranding and Efficacy Claims Related to COVID-19” for more insight on FDA and FTC actions related to COVID-19.

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.