Samuel Olens

Georgia Governor Brian Kemp signs expansive new elections bill


Late last week, the Georgia General Assembly passed and Governor Brian Kemp signed into law Senate Bill 202 — a far-reaching overhaul of state election law that will have a significant impact on the electoral process across the State of Georgia for years to come. The bill, opposed en masse by Democrats and many voting rights advocacy groups, impacts nearly every aspect of the election system in Georgia, including vote tabulation, voter identification requirements, State Election Board composition and ballot drop box placement and accessibility. The bill passed along party lines in both the House (100-75) and the Senate (34-20) on March 25 and was signed by the Governor that same day.

This alert is intended to provide an overview of the bill and its major positions. A more detailed analysis can be provided upon request.

Absentee ballots

One of the most impactful and widely-reported aspects of the 98-page bill is its establishment of absentee ballot identification requirements for Georgia voters. While the right to vote by absentee for any reason was preserved, any person applying for an absentee-by-mail ballot will now have to provide the following personal information to receive a ballot:

  • His or her name
  • Date of birth
  • Registration address
  • Address where the elector wishes the ballot to be mailed
  • The number of his or her Georgia driver’s license or issued identification card
  • A copy of an alternative form of identification if such elector does not have a Georgia driver’s license or issued identification card

When returning an absentee ballot, Georgia voters will now also need to provide the following on a separate ballot envelope inside the return envelope:

  • His or her name
  • A signature
  • The number of his or her Georgia driver’s license or issued identification card
  • An affirmation that the voter does not have a Georgia driver’s license or identification card in the event he or she does not possess such a license or card 
  • Date of birth
  • The last four digits of his or her Social Security Number if the elector does not have a Georgia driver’s license or state identification card

In addition to requiring the above information in conjunction with the absentee ballot request and return processes, the bill shortens the time frame within which voters can request absentee ballots under state law. The request period will now start 11 weeks before any given election and end 11 days before such election. Finally, state and local governments are prohibited from distributing unsolicited absentee applications to potential voters, and third-party groups circulating absentee ballot applications to Georgia voters are required to utilize prescribed labeling on materials and only send such materials to individuals who have not already requested, received or voted such absentee ballots.

Ballot drop boxes

In the wake of the State Elections Board’s emergency authorization of ballot drop box usage during the 2020 election due to the impact of the COVID-19 pandemic, Senate Bill 202 codifies the permissibility of drop box usage and requires all counties to have at least one such depository. The bill places limits, however, on the total number of drop boxes per county, capping the allowable number of depositories at the lesser of either one drop box for every 100,000 active registered voters or the total number of advance voting locations in the county.

In addition to restricting the number of total ballot drop box locations that Georgia counties can utilize for election purposes, Senate Bill 202 also mandates that drop box depositories: be located only inside early voting locations; be used only during advanced voting hours; and be under constant surveillance by an election official, law enforcement official or licensed security guard. Finally, the bill prohibits the usage of ballot drop boxes by voters during the last four days before an election.

Runoff election changes

In response to recent consternation over the lengthy runoff period codified in Georgia law for primary, general and special runoff elections, Senate Bill 202 seeks to shorten Georgia’s existing nine-week runoff period down to four weeks by sending military and overseas voters instant-runoff ranked choice absentee ballots. The legislation also shortens in-person early voting for runoff elections to a period of one week before election day. Additionally, Senate Bill 202 also replaces the previous “jungle primary” system for special election seats with a framework that includes party primaries. 

Early voting

At present under Georgia law, in-person early voting for general elections is required for three weeks prior to election day during “normal business hours” Monday through Friday and during the same time period on one Saturday during the pre-election period. Senate Bill 202 adds an extra Saturday to this early voting period and affords localities the option of instituting Sunday early voting as they see fit.

Despite this expansion of early voting opportunities for general elections, the incorporation of a shortened runoff period for state runoff elections will reduce early voting in such settings to just one week before the special election date.

Election management

Senate Bill 202 also contains a wide range of election management provisions that will have a significant impact on how Georgia elections will proceed in upcoming cycles. These changes include the following:

  • Allowing officials to process absentee ballots before the official closing of polls on election day
  • Requiring officials to count ballots nonstop once the polls close
  • Allowing flexibility with voting equipment for smaller, lower-turnout races
  • Prohibiting local election officials and boards of registrars from accepting outside funding, grants or gifts from private third-party groups
  • Permitting poll workers to serve in neighboring counties
  • Clarifying that poll hours at precinct locations may only be extended by judicial order upon showing of good cause
  • Requiring that no later than 10PM on election night counties must make public the total number of votes cast by each method
  • Mandating that all absentee ballots have to be counted by 5PM the day after the election
  • Disallowing voters who go to the wrong precinct from submitting provisional ballots in most cases
  • Requiring specific paper with additional security features to be used for ballots to create a verifiable paper trail of votes
  • Requiring precincts with more than 2,000 voters that have lines longer than an hour at three different points throughout the day to add more machines, add more staff or split up the precincts
  • Prohibiting the use of phones, cameras and other electronic devices to photograph or record a voted ballot or an elector while voting a ballot
  • Requiring the Secretary of State to conduct a pilot program to post scanned ballot images from elections
  • Establishing a hotline to the Attorney General’s office to report illegal or fraudulent behavior
  • Requiring counties to certify election results within six days
  • Limiting mobile polling stations to emergencies
  • Extending the current state bar on electioneering and political engagement activities in and around polling places and voter lines to include the third-party distribution of food and drink to prospective voters

State Election Board changes

Senate Bill 202 also makes several notable changes to the composition and powers of the Georgia State Election Board, bringing it under control of the state legislature and allowing it, in specific circumstances, to unilaterally take control of elections from local elections officials. In regard to composition, the legislation removes the Secretary of State as chair of the State Election Board and replaces him with a chairperson elected by the General Assembly.

Under the legislation’s provisions, the State Election Board has also been granted the power to remove county election boards and replace them with an interim elections manager if they deem the local boards as in need of intervention. At no time may the State Election Board suspend more than four county or municipal elections managers. This process is initiated by the ability of county commissions, the General Assembly, or the State Election Board to initiate a performance review of local officials.


As summarized above, Senate Bill 202 significantly amends the electoral process in Georgia and will have a profound impact on future state election cycles. Despite the bill’s passage, however, the political and legal fight over its various components has just begun. Although two major provisions contained in an earlier version of the law — the termination of non-excuse absentee voting for individuals under 65 and the prohibition of Sunday voting — were struck from the final legislation, several voting rights groups have vowed to fight the bill in court. As of the publication of this alert, a federal lawsuit has already been filed by third-party organizations challenging the absentee ID requirements, drop box limits, provisional ballot invalidations, and food and drink distribution bar as “unjustifiable burdens” on Georgia voters. The Dentons Georgia Public Policy and Political Law Teams will continue to monitor those lawsuits as they proceed, and likewise seek to update our clients on other election and voting rights matters in Georgia and beyond, as they are certain to be a major political focus in the 2022 statewide elections and upcoming federal legislative battles in Congress.  

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


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.


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.


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.


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.


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


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.


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.

Ohio Attorney General petitions for writ of mandamus to stop opioid trials

The US District Court for the Northern District of Ohio is the home of a multidistrict litigation (MDL) aggregating more than 2,000 lawsuits from across the country in which state political subdivision plaintiffs have sued manufacturers, distributors and others they claim responsible for the nation’s opioid epidemic. The court has scheduled a consolidated seven-week bellwether trial for two of those subdivisions (Ohio’s Cuyahoga and Summit Counties) seeking $8 billion, to begin on October 21, 2019. On August 30, 2019, in the US Court of Appeals for the Sixth Circuit, the Attorney General of Ohio filed a petition for writ of mandamus on behalf of the State of Ohio. The petition states that if the consolidated trial proceeds on the theories pleaded in the complaints, it will include claims that belong to the State of Ohio and presents the following question:

Should a writ of mandamus issue to stop or delay the trial in order to protect Ohio’s sovereign right to litigate on behalf of its citizens as parens patriae?

In 2017, the Ohio Attorney General brought a civil action in a state court against several opioid manufacturers. In the petition the Ohio AG asserts that (i) the writ of mandamus is necessary to preclude a US district court from trying non-justiciable claims in a trial which, if unchecked, would cripple the federal dual sovereignty structure of the US; and (ii) only a state AG has parens patriae standing to prosecute claims vindicating generalized harm to a state’s inhabitants and that political subdivisions do not have parens patriae standing. The petition argues that the trial would fragment the State’s claims, pose a high risk of inconsistent verdicts, result in duplicative or overlapping damages and misallocate funds in the state. The AG further asserts that the counties advance claims that belong to the State in an effort to commandeer moneys that rightfully should be distributed across the state by Ohio.

Thirteen other states and the District of Columbia filed an amicus brief in support of the petition. At this writing, no hearing on the petition has been scheduled.