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April 30, 2020 -- Two important developments have occurred since my first advisory to law enforcement on the COVID-19 pandemic.

First, the Governor has extended social distancing and business restrictions to May 15, 2020. In a series of executive orders (202-202.22) to contain COVID-19 and protect the public’s health and well-being, the Governor, among other directives, banned non-essential gatherings of any individuals of any size for any reason; closed movie theaters, casinos, gyms, barbershops, bars, restaurants and other non-essential businesses; and required a 100% workforce reduction for all nonessential businesses. Notably, in EO 202.18, the Governor has directed that all his social distancing and business restrictions continue until May 15, 2020.

Second, the Commissioner of the New York State Department of Health has issued emergency regulations that mirror the Governor’s social distancing and business restrictions in his executive orders. These emergency regulations are set forth in 10 NYCRR 66-3

These regulations are enforceable civilly and administratively as well as, in an appropriate case, criminally under Public Health Law § 12-b (2), a misdemeanor, for a willful violation of any “regulation lawfully made or established by any public officer or board under the authority” of the Public Health Law and an otherwise applicable violation of the Penal Law.
In sum, the new regulations:

  • Apply for the duration of the Governor’s declared state disaster emergency (10 NYCRR 66-3.1).
  • Prohibit non-essential gatherings of any number of individuals for any reason at any location in the state (10 NYCRR 66-3.2).
  • Close non-essential businesses by ordering reduction of in-person workforce by 100%, and specifies examples of non-essential businesses to include barbershops, hair salons, any places of public amusement, gyms, movie theaters, restaurants and bars (10 NYCRR 66-3.3).
  • Make a violation of the emergency regulations subject to civil and criminal penalties, including a maximum civil fine of $1,000 for each violation (10 NYCRR 66-3.4).

These new regulations provide an additional means for local and state regulatory agencies and law enforcement to enforce the Governor’s executive orders and his New York State 10-point Pause Plan

For example, a non-essential business that remains open and ignores the non-essential business restriction, despite repeated warnings by police and health authorities to close, may be subject to criminal prosecution for violating 10 NYCRR 66.3-3 under Public Health Law § 12-b (2), as well as other applicable offenses under the Penal Law, such as Disorderly Conduct (Penal Law § 240.20 [7]) or Criminal Nuisance in the Second Degree (Penal Law § 245.45 [1]).

Another example: individuals congregating in a non-essential gathering may be subject to criminal prosecution for violating 10 NYCRR 66.3-2 under Public Health Law § 12-b (2), as well as other applicable offenses under the Penal Law, such as Disorderly Conduct (Penal Law
§ 240.20 [6]) or Criminal Nuisance in the Second Degree (Penal Law § 245.45 [1]).

But, as emphasized in the first law enforcement advisory, I believe that the least invasive enforcement mechanism should be used to obtain adherence. Verbal warnings to disperse or cease the activity or gathering, including when applicable, an advisement of the Government’s orders and State Health regulations barring non-essential gatherings, should be employed. Such warnings usually will suffice. Beyond police warnings, civil enforcement through more coercive measures, such as fines and injunctive relief by state or local health, fire, and building authorities, may be warranted. Finally, in the most egregious circumstances, or repeated willful violations, criminal enforcement may be appropriate.

For legal assistance and guidance in any particular circumstance or situation, law enforcement is encouraged to contact my office.

On behalf of the entire District Attorney’s Office, I again thank all of you for your efforts in keeping us safe and please stay safe.