By Matthew Goldberg and Heather Sager

On April 29, 2020, seven Bay Area jurisdictions—Alameda, Contra Costa, Marin, San Mateo, Santa Clara and San Francisco Counties, as well as the City of Berkeley—issued revised Shelter-in-Place Orders that will take effect May 4, 2020 and remain active through May 31, 2020. The Orders relax some prior restrictions, but unless specifically noted, non-essential businesses must remain closed. The updated Orders allow the following:

  • “Outdoor businesses” (see below) to reopen, provided they have the ability to maintain social distancing of at least six feet between all persons—note that this expressly excludes restaurants with outdoor seating;
  • Commercial and residential construction projects to resume as essential businesses, provided they are in compliance with specific health protocols—attached as appendices to the Orders;
  • Real estate transactions (including residential moves) to resume, but with continued restrictions on in-person viewings and appointments;
  • Expanded outdoor recreational activities as long as social distancing can be maintained; and
  • The definition of childcare establishments classified as essential businesses has been expanded to include educational recreational programs, such as summer camps, although these programs may not have more than 12 children in one group.

Outdoor Businesses

The Orders define “outdoor businesses” as those where more than 50% of the total floor area regularly used for product sales was located outdoors prior to March 16, 2020. To permissibly reopen, such “outdoor businesses” must conduct all business and transactions involving members of the public in outdoor spaces. This means that if an outdoor business includes an indoor facility or indoor portion as retail space that typically serves the public, that indoor facility or indoor retail space must be closed to the public and all sales must take place outdoors. Employees may continue to use the indoor space as necessary and may bring products outdoors for the public. Examples of “outdoor businesses” referenced in the Orders include plant nurseries, agricultural operations, landscaping and gardening services, car dealerships, and car washes. Note that outdoor seating areas at restaurants are expressly excluded from the reopening Orders (although takeout and delivery services remain permissible).

Social Distancing Protocol

The required social distancing protocols for all businesses remain unchanged from the March 31, 2020 Orders except that face coverings are now required (Alameda, Contra Costa, Marin, San Mateo and San Francisco Counties) or strongly recommended (Santa Clara County) any time individuals leave their residence. Note that leaving a primary residence still should occur only to engage in enumerated essential functions/business.

Recreational Activities

The new Orders allow use of shared outdoor recreational facilities that do not encourage gathering, physical contact, or contain high-touch equipment. As before, use is limited to facilities that can be accessed by foot or bicycle from a person’s primary residence, and “group” activities must be limited to individuals in the same household. Everyone must follow the stricter of any restrictions that either state or local authorities impose. For instance, right now, the State Shelter Order prohibits golf courses from operating, although Governor Gavin Newsom has indicated in verbal comments that the state order will be amended to allow golf courses to operate and some counties, like Marin, have already assumed that permission is in place.

Miscellaneous Revisions

Although the verbiage of the new Orders is essentially identical, San Francisco and Santa Clara Counties have interpreted “financial institutions” to include pawn shops. In addition, San Francisco has interpreted businesses that supply and manufacture cell phones as essential businesses. And, as noted above, Marin County is already permitting golf under restrictions (no more than two persons unless in same household, no shared carts, etc.). Accordingly, it is worth reviewing your local Order to ensure you are well informed about the fine print.

As the Shelter-in-Place Orders continue to shift, we recommend consulting with legal counsel to determine what, if any, additional action you should take.