Interpretation And Implementation Of March 16, 2020 Mayoral Proclamation

The Mayoral Proclamation ordered the following, pursuant to La. R.S. 29:727:

All public and private gatherings shall be canceled or prohibited in non-emergency situations and where possible. In limited circumstances, personal gatherings should be limited to the number of persons in a reasonable household size. This shall not apply to healthcare facilities, pharmacies, grocery stores, corner stores, banks, gas stations, and other essential service providers. Loitering outside of any of these essential service providers shall be prohibited. Bars, Health Clubs (e.g. gyms and fitness centers), Shopping Centers configured as malls (but not strip centers), Live Performance Venues, Reception Facilities, and other establishments where large gatherings routinely occur and/or where the risk of possible COVID-19 spread exists, shall cease operations. Restaurants, as defined in the Comprehensive Zoning Ordinance, shall limit their operations to take out and delivery only, including the sale of alcohol in accordance with City and State issued permits.

Gatherings

Mayor Cantrell’s first order concerns gatherings of people outside the home, which should be avoided to the extent possible in all circumstances, in accordance with COVID-19 guidance from the Centers for Disease Control and Prevention (“CDC”) and state and local health departments. The CDC advises that the best way to prevent illness is to avoid being exposed to this virus. Thus, the CDC encourages individuals to put distance between themselves and other people if COVID-19 is spreading in the community, which is especially important for people who are at higher risk of getting very sick. Because substantial community spreading of COVID-19 has been observed in New Orleans, Mayor Cantrell’s first order mandates that gatherings of individuals outside the home are canceled or prohibited in non-emergency situations and where possible.

This general prohibition does not apply to essential service providers, including but not limited to the following:

Healthcare operations;

Any establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, and any other household consumer products (such as cleaning and personal care products), including stores that sell groceries and other non-grocery products, such as products necessary to maintaining the safety, sanitation, and essential operation of residences;

Food cultivation, including farming, livestock, and fishing;

Businesses that provide food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals;

Businesses necessary for required construction and/or infrastructure projects; ports and maritime, railroads, solid waste collection and removal, utilities, on- and offshore energy production, energy transmission, refineries and chemical plants, pipeline, and telecommunications systems;

Newspapers, television, radio, and other media services;

Gas stations and automobile supply, automobile repair, bicycle supply, bicycle repair, and related facilities;

Banks and related financial institutions;

Hardware stores;

Any other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of businesses or residences (e.g., plumbers, electricians, exterminators, security personnel);

Businesses providing mailing and shipping services, including post office boxes;

Educational institutions—including public and private K-12 schools, colleges, and universities—for purposes of facilitating distance learning or performing essential functions, provided that social distancing requirements, including spacing of six-feet per person, are maintained to the greatest extent possible;

Laundromats, dry cleaners, and laundry service providers;

Restaurants and other facilities that prepare and serve food, but only for delivery or carry out;

Businesses that supply products needed for people to work from home;

Businesses that supply other essential businesses with the support or supplies necessary to operate;

Businesses that ship or deliver groceries, food, goods, or services directly to residences;

Airlines, taxis, and other private transportation providers providing essential transportation services;

Home-based care for seniors, adults, or children;

Residential facilities and shelters for seniors, adults, and children;

Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities; and

Childcare facilities, provided that social distancing of six-feet per person is maintained to the greatest extent possible.

Essential service providers must engage in social distancing at all times, where feasible.

Establishments that Must Cease Operations

Mayor Cantrell’s second order identifies specific types of businesses and other establishments where large gatherings routinely occur and/or where the risk of possible COVID-19 spread exists, and instructed those businesses to cease operations.

The following businesses shall cease operations until the emergency order is terminated:

All “bars,” which are defined in the Comprehensive Zoning Ordinance (“CZO”) as establishments “serving alcoholic beverages in which the principal business is the sale of such beverages for consumption on the premises.” In practice, bars are issued occupational licenses that identify them as such, and bars may generate over 50% of their revenue from alcohol sales (with some exceptions). The Department of Safety and Permits should be contacted with any questions as to whether an establishment is a “bar” (504-658-7125, permitinfo@nola.gov).

All “Health Clubs”, which are defined in the CZO as establishments that provide “health and fitness facilities such as running, jogging, aerobics, weight lifting, court sports, and swimming, and may include ancillary facilities such as locker rooms, showers, massage rooms, saunas, sales of related health equipment and clothing, juice bars, and other related uses.” For example, “health clubs” would include gyms, fitness centers, athletic clubs, and boxing facilities.

All Shopping Centers configured as malls, but not strip centers. A “Shopping Center” is defined in the CZO as a “group of retail and other commercial establishments that is planned, owned, and managed as a single property. The center’s size and orientation are generally determined by the market characteristics of the trade area served by the center. The two (2) main configurations of shopping centers are malls and strip centers.” A “Strip Center Development” is then defined in the CZO as a “pattern of commercial development comprised of two (2) or more separate businesses, generally one (1) lot in depth with commercial activity arranged in a line formation.”

All Live Performance Venues, which are defined in the CZO as “indoor facilit[ies] for the presentation of live performances, including musical acts, theatrical plays or acts, stand-up comedy, magic, dance clubs, and disc jockey performances using vinyl records, compact discs, computers, or digital music players.”

All Reception Facilities, which are defined in the CZO as establishments that function as “a hosting and rental facility or banquet hall for private events including, but not limited to, wedding receptions, holiday parties, and fundraisers, with food and beverages that are prepared and served on site or by a caterer to invited guests during intermittent dates and hours of operation.”

The catch-all language in the Mayoral Proclamation that requires “establishments where large gatherings routinely occur and/or where the risk of possible COVID-19 spread exists” to cease operations should be interpreted to require the following types of businesses to close until the emergency order is terminated:

All “Arts Studios”, which are defined in the CZO as establishments “for the instruction or study of an art or type of exercise or activity such as dance, martial arts, photography, music, painting, gymnastics, or yoga, whether or not the artists live at the establishment.”

All “Indoor Amusement Facilities”, which are defined in the CZO as “Spectator and participatory uses conducted within an enclosed building, such as movie theaters, bowling alleys, pool halls, arcades, and indoor sporting exhibitions. Indoor amusement facilities do not include stadiums, arenas, or live performance venues.”

All adult live performance venues, arenas, auditoriums, casinos, gaming establishments, cigar bars, country clubs, fairgrounds, off-track betting facilities, outdoor amphitheaters, racetracks, social clubs, and stadiums.

Restaurants

Mayor Cantrell’s third order requires “Restaurants,” as defined in the CZO, to limit their operations to take out and delivery only, including the sale of alcohol in accordance with City and State issued permits.

The CZO provides for the following definitions of the different types of restaurants, all of which are required to limit their operations in accordance with the Mayoral Proclamation:

Restaurant, Carry-Out . An establishment maintained, operated, or advertised or held out to the public as a place where food, beverage, or desserts are served in disposable containers or wrappers from a serving counter for consumption off the premises. Carry-out restaurants may not offer alcoholic beverages for sale.

. An establishment maintained, operated, or advertised or held out to the public as a place where food, beverage, or desserts are served in disposable containers or wrappers from a serving counter for consumption off the premises. Carry-out restaurants may not offer alcoholic beverages for sale. Restaurant, Fast-Food . An establishment, which may be part of a chain of fast food outlets, that is oriented around the quick-service of meals for on-premise or off-premise consumption. Typically, a fast-food restaurant’s design or principal method of operation includes three (3) or more of the following characteristics: 1) a permanent menu board is provided from which to select and order food; 2) standardized floor plans, architecture and/or sign design are used over several locations; 3) customers pay for food before consuming it; 4) a self-service condiment bar is provided; 5) trash receptacles are provided for self-service bussing; 6) furnishing plan indicates hard-finished, stationary seating arrangements; 7) drive-through service is offered; and 8) most main course food items are prepackaged rather than made to order. Fast food restaurants may not offer alcoholic beverages for sale. Table service by restaurant employees is not provided.

. An establishment, which may be part of a chain of fast food outlets, that is oriented around the quick-service of meals for on-premise or off-premise consumption. Typically, a fast-food restaurant’s design or principal method of operation includes three (3) or more of the following characteristics: 1) a permanent menu board is provided from which to select and order food; 2) standardized floor plans, architecture and/or sign design are used over several locations; 3) customers pay for food before consuming it; 4) a self-service condiment bar is provided; 5) trash receptacles are provided for self-service bussing; 6) furnishing plan indicates hard-finished, stationary seating arrangements; 7) drive-through service is offered; and 8) most main course food items are prepackaged rather than made to order. Fast food restaurants may not offer alcoholic beverages for sale. Table service by restaurant employees is not provided. Restaurant, Specialty . An establishment whose primary business is the sale of one or more specialty types of food or beverage that is or are not considered a complete meal (e.g., candy, coffee, or ice cream). Specialty restaurants may only offer alcoholic beverages for sale in those districts where a bar is a permitted use or in those districts where a bar is a conditional use, upon obtaining conditional use approval. No gathering or seating is permitted in any restaurant location, for any purpose. Service should be limited to curb-side take out or delivery.

. An establishment whose primary business is the sale of one or more specialty types of food or beverage that is or are not considered a complete meal (e.g., candy, coffee, or ice cream). Specialty restaurants may only offer alcoholic beverages for sale in those districts where a bar is a permitted use or in those districts where a bar is a conditional use, upon obtaining conditional use approval. No gathering or seating is permitted in any restaurant location, for any purpose. Service should be limited to curb-side take out or delivery. Restaurant, Standard. An establishment where food and/or beverages are prepared to order, served by wait staff, and usually consumed on-premises. A standard restaurant’s principal method of operation includes ordering by customers from an individual menu or menu board and the service of food and beverages by a restaurant employee at the same table or counter where the items are consumed. Standard restaurants may sell and serve alcoholic beverages. Average monthly revenue from food and nonalcoholic beverages shall exceed fifty percent of the total average monthly revenue from the sale of food, nonalcoholic beverages and alcoholic beverages. No gathering or table seating is permitted in any restaurant location, for any purpose. Service should be limited to curb-side take out or delivery.

The Louisiana Homeland Security and Emergency Assistance and Disaster Act provides that “any person . . . violating any order, rule, or regulation promulgated pursuant to this Chapter, shall be fined not more than five hundred dollars, or confined in the parish jail for not more than six months, or both.” La. R.S. 29:727(G). Additionally, Section 54-401 of the City Code provides that whoever “violates any provision of an emergency order issued by a competent official under authority of a declaration of emergency made pursuant to state law, or whoever during such a declared state of emergency sells anything at a price that violates R.S. 29:732, shall be guilty of a misdemeanor.” Section 54-25 of the City Code says that such a misdemeanor "shall be punished by a fine not exceeding $500.00, or by imprisonment for not more than five months or both such fine and penalty." Mayor Cantrell has declared a state of emergency to exist in New Orleans via proclamation on March 11, 2020 and has imposed orders subject to these penalty provisions in her March 16, 2020 Proclamation. These emergency orders will be strictly enforced, and compliance is of the utmost importance.