COMMONWEALTH of VIRGINIA DEPARTMENT OF HEALTH CCONTRAL VAGINA HEALTH DSTRICT env THE COUNTIES CF IME, Ya 2401 erowarrox PHONE 4774800 ‘November 25, 020 ese {CUTIVE ORDER(S) 63 and 67 and ORDERS OF SEVEN NOTICE OF VIOLATION OF. PUBLIC HEALTH EMERGENCY FIVE Al Mr. John Sharp, Chairman Bedford County Board of Supervisors 105 Oakdale Terrace Forest, Virginia 24551 Re: Amended Executive Order(s) 63 and 67 and Orders of Public Health Emergency Five and Seven; effective November 16, 2020, Dear Mr. Sharp: ‘This Notice of Violation of Executive Orders 63 and 67 and Orders of Public Health Emergency Five and Seven (Notice is to inform you Bedford County Health Department (BCHD) is aware the Bedford County Board of Supervisors (Board) held an open meeting on November 23, 2020, in violation of the referenced Orders. By holding a public meeting without ‘requiring allendees to wear face coverings, maintain social distancing, and limit attendee numbers to less than 25 as required by the Orders, the Board and Chairman Sharp failed to take steps to mitigate the spread of COVID-9, as ordered by Governor Ralph S. Northam and State Health Commissioner M. Norman Oliver, MD. Asa result and to mitigate the spread of COVID-19, BCHD issues this Notice, provides justification for doing so, and recommendations for Order compliance below: Chronology: ‘The information below provides context and background as tothe basis for the actions contained herein LL Following the State Health Commissioner declaring COVID-19 a disease of public health threat on February 7, 2020, Virginia Governor Ralph S. Northam. declared a state emergency due to COVID-19 on March 12, 2020, by Executive Order VDHE= MawsonBeaford County Board of Supervisors November 25,2020, Page? of 8 2. In an effort to contain, control, and prevent futher spread of COVID-19, on March 17, 2020, Governor Northam announced additional measures to reduce unnecessary risks to citizens of the Commonwealth. Such measures included social distancing and reducing seating capacity of restaurants, fitness centers, and theatres. 3. On March 17, 2020, State Health Commissioner Oliver and Governor Northam issued a Declaration of Public Health Emergency (Order) asa result ofthe spread of COVID-19. The Order, in part, provided for suspensions of food establishment permits for imminent public health hazards associated with congregations of more ‘than 10 total patrons ina restaurant 4. On May 26, 2020, Govemor Northam issued Executive Order 63 and State Health Commissioner Oliver issued Order of Public Health Emergency Five, requiring trons to wear face coverings while inside public buildings. Specifically, Execuive Order 63 authorized the Virginia Department of Health to enforce the onder, stair: “Any willful violation or refusal, failure, or neglect to comply with tis Order, isued parsuant to § 32.1-13 ofthe Code of Virgina, is punishable asa Class | misdemeanor pursuant to § 321-27 ofthe Code of Virginia. The State Health Commissioner may also seek injunctive relief in citcuit court for violation ofthis Order, pursuant to § 32.1-27 of the Code of Virginia. No minor shall be subject to criminal penalty for fhilure to wear a face covering. Adults accompanying minors should use the adul's best judgment with respect to placing face coverings on a minor between the ages of two through nine while inside the public areas noted above. Adults accompanying ‘minors age 10 through 18 shall use reasonable effor's to prompt the minor to wear face coverings while inside the public areas noted above.” 5. On June 30, 2020, Governor Northam issued Executive Order 67 and State Health (Commissioner Oliver issued Order of Public Health Emergency Seven, moving tke Commonwealth into Phase 3 and easing the temporary restrictions due to COVID 19. Included in the order isthe requirement that businesses require employees in customer-facing postions wear face coverings. ‘The Order also provided, “The Virginia Department of Health shall have authority to enforce section A of this Order. ‘Any willful violation or refusal, failure, or neglect to comply with this Order, issued pursuant fo § 32.1-13 of the Code of Virginia, is punishable as a Class | misdemeanor pursuant to §32.1-27 ofthe Code of Virginia, The State Heath Commissioner may also seek injunctive relief in circuit cour for violation of this Order, pursuant to § 32.1-27 of the Code of Virginia, In addition, any agency with regulatory authority vera business listed in section A may enforce this Order as to that business tothe extent permitted by aw.” 6, On November 13, 2020, Governor Northam amended Executive Order 63 and State Health Commissioner Oliver amended Order of Public Health Emergency Five (cffective November 16, 2020), requiring individuals over the age of five to wearBeaford County Board of Supervisors November 25,2020 Page 3 ors face coverings while inside public buildings, including “State or local ‘government buildings when accessed for the purpose of securing public services.” Specifically, Executive Order 63 authorized te Virginia Department of Health to enforce the order, stating: “Any willful violation or refusal, failure, or neglect to comply with this Order, issued pursuant to §32.1-13 of the Code of Virginia, is punishable asa Class | misdemeanor pursuart to § 32.1-27 of the Code of Virginia. The State Health Commissioner may also seck injunctive relief in circuit ‘court for violation of this Order, pursuant to § 32.1-27 ofthe Code of Virginia. No ‘minor shall be subject to criminal penalty for failure to wear a face covering. Adults accompanying minors should use the adult's best judgment with respect to placing face coverings on a minor between the ages of two through four while inside the public areas noted above, Adults accompanying minors aze five through 18 shall use reasonable efforts to prompt the minor to wear face coverings while inside the public areas noted above.” 7. On November 13, 2020, Governor Northam amended Executive Order 67 and State Health Commissioner Oliver amended Order of Putlic Health Emergency Seven (effective November 16, 2020), tightening Phase 3 temporary restrictions due to COVID 19. Included in the order isthe requirement “lal public and private in- person gatherings of more than 2 individuals are prohibited.” Additionally, the order states essential retail businesses must comply with the “Guidelines for All Business Sectors expressly incorporated by reference... and [elmployers are required to provide face coverings to employees. Ifany such busisess cannot adhere to these requirements, it must close.” The Order further provided. “The Virginia Department of Heath shall have authority to enforce section C ofthis Order. Any willful violation or refusal, failure, or neglect to comply with this Order, issued pursuant to § 32.1-13 of the Code of Virginia is punishable asa Class 1 misderteanor pursuant to § 32.1 27 of the Code of Virginia. The State Health Commissioner may also seck injunctive relief in circuit court for violation ofthis Order, pursuant o § 32.1-27 ofthe Code of Virginia. In addition, any agency with regulatory authority over a business listed in section C may enforce this Order as to that business to the extent permitted by law.” APPLICABLE LAW (in par): {§32.1-13, Emergency orders and regulations, ‘The Board may make separate orders and regulations to meet any errergency, not provided for ‘by general regulations, for the purpose of suppressing nuisances dangerous tothe public health and communicable, contagious and infectious diseases and other dangers to the public life and health 321-27, Penalties, injunctions, civil penalties and charges for voBedford County Board of Supervisors November 25,2020 Paget oF {A Any person willfully violating or refusing, filing or neglecting o comply with any regulation or order of the Board or Commissioner or any provision of this ile shall be gulty of a Class | ‘misdemeanor unless a different penalty is specified. BB. Any person violating or filing, neglecting, or refusing to obey any lawful regulation or order of the Board or Commissioner or any provision of ths tile may be eompelled in a proceeding. instituted in an approprite court by the Board or Commissioner to obey such regulation, order ot provision ofthis title and to comply therewith by injunction, mandamus, or other appropriate remedy or, pursuant to § 32.1-27-1, imposition ofa civil penalty or appointment ofa receiver. 44-146.17, Powers and duties of Govern: The Governor shall be Director of Emergency Management. He shall take such action from time to time as is necessary for the adequate promotion and coordination of state and local emergency services activities relating to the safety and welfare ofthe Commonwealth in time of disasters, Te Governor shall have, in addition to his powers hereinafter or elsewhere prescribed by law, the following powers and duties: (1) To proclaim and publish such rules and regulations and to issue such orders as may, in his Judgment, be necessary to accomplish the purposes of this chapter including, but not limited to such measures as are in his judgment required to control, restrict, allocate of regulate the use, sale, production and distribution of food, fue, clothing and other commodities, materials, goods, services and resources under any state oF federal emergency services programs. He may adopt and implement the Commonwealth of Virginia Emergency Operations Plan, ‘which provides for state-level emergency operations in response to any type of disaster or large- scale emergency affecting Virginia and that provides the needed framework within which more detailed emergency plans and procedures can be developed and maintained by state agencies, local governments and other organizations He may direct and compel evacuation of all or part ofthe populace from any stricken or threatened area if this action is deemed necessary forthe preservation of lif, implement ‘emergency mitigation, preparedness, response of recovery actions; prescribe routes, modes of transportation and destination in connection with evacuation; and control ingress and egress at an emergency area, including the movement of persons within the area and the occupancy of premises therein, Executive orders, to include those declaring a state of emergency and directing evacuation, shall have the force and effect of law and the violation thereof shall be punishable asa Class | ‘misdemeanor in every case where the executive order declares tht its violation shall have such force and effect Such executive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation conceming a communicable disease of public health threat tha is issued by the State Health Commissioner for an affectedBedford County Board of Supervisors November 25.2020 Page S018 sre oF the Cor 321 jonwealth pursuant to Article 3.02 (§32.1-48.05 et seq, of Chapter 2 of Tile EXECUTIVE ORDER NUMBER 63 (2020) AMENDED ORDER OF PUBLIC HEALTH EMERGENCY FIVE REQUIREMENT TO WEAR FACE COVERING WHILE INSIDE BUILDINGS; issu2d bby Governor Ralph S. Northam and Health Commissioner M, Norman Oliver (Amended November 13, 2020) Importance ofthe Issue The Commonwealth of Virginia continues to respond tothe novel coronavieus (COVID19) pandemic. We must remain vigilant. Science shows us that face coverings can help stop the spread of the virus. Tat is why the Centers for Disease Control and Prevention (CDC) recommends wearing cloth face coverings, even those made from household items or common ‘materials in public setings. I strongly urge all Virginians to wear face coverings when leaving their homes. But as o indoor settings to which the public has access, mere encouragement isnot ‘enough to protect the health and safety of Virginians. Therefore, Executive Order 63, issued in May, required face coverings to be wor in certain indoor public spaces. Now, as we continve to prioritize the health and safety of our students, educators, and school staff, additional requirements to wear face coverings are necessary. Therefore, by virtue ofthe authority vested in ime by Article V of the Constitution of Virginia, by § 44-146.17 of the Code of Virginia, by eny other applicable law, and in furtherance of Amended Executive Order 51, and by virtue of the authority vested in the State Health Commissioner pursuant to $§ 32.1-13, 32.1-20, and 35.1-10 of the Code of Virginia, the following is ordered: Directive AA, Face Coverings Required-Patrons and Visitors All individuals in the Commonwealth aged five and over shall when entering, exiting traveling through, and spending time inside the setings listed below, cover their mouth and nose witha face covering, as described and recommended by the CDC. 6, Any other indoor place shared by groups of people who are in close proximity to each other. This restriction does not apply to persons while inside their residence ot the personal residence of another. Face coverings may be removed to participate in religious ritual. 7. State or local government buildings when accessed for the purpose of securing public services, with the exception of students in daycare centers or participating in-person classes in K-12 education or institutions of higher education. SIXTH AMENDED NUMBER SIXTY-SEVEN (2020) AND ORDER OF PUBLIC HEALTH EMERGENCY SEVENBedford County Board of Supervisors November 25,2020 Page sof PHASE THREE TIGHTENING OF CERTAIN TEMPORARY RESTRICTIONS DUE TO NOVEL CORONAVIRUS (COVID-19); issued by Governor Ralph, Northam and Health Commissioner M. Norman Oliver. (Amended November 13, 2020) Importance of the Issue While the Commonwealth's case count per capita and positivity rate remain comparatively low, all five health cegious in he Commonwealth ave expesiencing increases in new COVID-19 ease, positive tess, and hospitalizations. Virginia is averaging 1,500 nev COVID-19 cases per day, up from a statewide peak of approximately 1,200 in May. The statewide percent test positivity rate is at 6.5%, an increase from 4.3% approximately one month ago. Al five health regions report a positivity rate over five percent and hospitalizations have increased statewide by more than 35 percent inthe last four weeks. Case investigation interviews show a pattem of increased socialization with extended (non-household) family members and friends. Recent scientific Titerature suggests indoor settings contribute to community transmission. Modeling data demonstrates that large gatherings substantially increase transmission ofthe vieus. Although Virginians have done much to mitigate the spread of the virus, itis clear that addtional measures are necessary. Accordingly, [order following additional restrictions. Directive Therefore, by virtue ofthe authority vested in me by Article V ofthe Constitution of Virginia, by § 44-146.17 of the Code of Virgaia, by any other applicable law, and in furtherance of Amended Executive Order 51 (2020), and by virtue ofthe autherity vested inthe State Health (Commissioner pursuant to §§ 32.1-13, 32.1-20, and 35.1-10 of the Code of Vieginia, the following is ordered: BB. All public and private in-person meetings of more than 25 individuals are prohibited. The presence of more than 25 individuals performing functions ofthe employment is or assembled ‘man instructional seting is nota “gathering” A gathering includes, but is not limited to, partes, celebrations, or other social events, whether they occur indoors or outdoors Observations and factual understanding: 1. On November 24, 2020, BCHD received complaints the Board, chaired by John ‘Sharp, held a public meeting on November 23, 2020, which violated the requirements ‘of the applicable ordersOrders cited above. Included is the complaints was a news story appearing on WSET, Channel 13, concerning the November 23, 2020, Boardoard meeting. Video and photographs inthe news report show a large number ‘of persons gathered outside ofthe meeting room, lining the walls of the meeting room, most of whom were not wearing face coverings, and most of whom failed to ‘maintain six feet of separation between parties. Additonally, the news story reported that 5 persons were allowed into the meeting. Video ofthe inside ofthe ‘meeting room showed people standing and siting shoulder to shoulder, most ofBedford County Board of Supervisors overber 25,2020 Page of8 ‘whom were not wearing face coverings. See https:/wset.com/newslocal/-suggest- ‘you-not-wear-your-mask-bedord-co-ctizens-fightagainst-northam-covid-19 2. BCHD was notified ofa story by reporter Tim Harfinann, published on November 24, 2020, on the WSLS Channel 10 website In the story was a video that showed the ‘same observations asthe story published by WSET Channel 13, including a statement from Board of Supervisors Chairman John Sharp to all persons present, “I suggest ‘you all enjoy Thanksgiving ust as you would normally. 'm having friends over. 1 ‘Suggest you not wear your mask, because I never wear mine.” See -itps:/4vww.wsls.com/news/Loeal/202001 1/25/gov-northams-office-health-officials- reactto-packed-bedford-county-mecting 3. On November 25,2020, The News & Advance published an article detailing the Board's meeting, to consider a "No Shutdown” resolution. The article claimed “nearly 100 people packed the hall and boardroom.” See Ips:/inewsadvance.convnewsocalgovt-and-politis/as-some-residents-resist- northams-newest-order-Iynchburg-area-localites-consider-next- steps/aricle_£09e7786-cSb2-5440-b145-82840076eI 5.humliftracking-source-home- top-story Recommen: ‘The COVID-19 pandemic is areal and pervasive threat to public health. The reckless disregard fr the requirements of the Executive Orders can, and will, unnecessarily endanger citizens of Bedford County. ‘The number of positive cases in Bedford County has been trending ‘upward since the middle of September. On September 25, the 7-day average number of eases reported was 7; on November 25, that number had increased to 23. On November 20, the number of eases reported in Bedford County was $4, the highest number of eases reported in & single day since the outbreak bezan. Additionally, the positivity rate, which isthe percentage of persons who test psitive among all persons tested, rose from 5.6% on September 25 to 9.2% on November 25. These increases are an indicator that now, more than ever, citizens and local government officials need to take appropriate actions to prevent the spread of the COVID-19, ‘While all persons inthe Commonwealth enjoy certain rights that are protected by law, all persons have a responsibility to comply with legal requirements to protect their fellow citizens “Those legal requirements inelude wearing face coverings in publi, maintaining physical distance from those not inthe same household, and limiting gatherings to 25 persons or fewer. These relatively simple measures are not only legal requirements, but a civic duty and compliance will reduce the number of persons who become infected withthe virus. Therefore, BCHD recommends you take the following steps to address your failure to comply withthe terms of applicable Orders 1. Limit in-person meetings to 25 for fewer persons, Mectings may be conducted clectronically (.g, by videoconference) in order to allow greater attendance and censure compliance with the Orders.Bedford County Board of Supervisors November 25,2020 Page Bat 2. Enforce the requirement in amended Executive Order 63 tha ‘wear face coverings. 3. Maintain atleast six feet of separation among attendees. tendees at meetings ‘This Notice sets forth above BCHD’s observations, alleged violations of Executive Order(s) 63 and 67 and Orders of Public Health Emergency Five and Seven, and provides recommended actions. Please be advised that if you fail to remedy the violations alleged or violations continue, BCHD will see enforcement action pursuant to authority provided by Governor Northam to VDH in the applicable Orders, ineluding Class | criminal misdemeanor charges and civil injunctive relief. Bear in mind should the observations above include employees failing to comply with the Exccutive Orders cited, BCHD will refer this case to the Virginia Department of Labor and Industry; the ageney tasked with ensuring the protection of Virginia employees from occupational safety and health hazards. (See attached). Please contact me Jim Bowles, Environmental Health Manager, at (434) 477-5956 or via _at jim. bowles@vh.virginia.gov should you have questions or wish to discuss this Notice, including recommended actions. Sincerely, Environmental Health Manager ‘Ce: Robert Hiss, County Administrator Bedford County ‘Wes Nance, Commonwealth Atomey Bedford County Patrick Skelley, County Attorney Bedford County M, Norman Oliver, MD, State Health Commissioner ‘Autach: (1) Enel: (XX)FOR VOSH INVOL Explaining the POTEN’ /EMENT Applicable Laws, Standards, Regulations, and Executive Order The Virginia Department of Health (VDH) is charged with coordinating the Commonwealth's response to the COVID-19 pandemic. One very important aspect of that responsibilty is to assure that events involving entertainment and amusement businesses’ and public and private in- person gatherings’ (“events”) comply with applicable laws, regulations, standards, and Executive Orders to prevent spread of SARS-CoV-2 ‘The Department of Labor and Industry's Virginia Occupational Safety and Health (VOSH) program is charged with ensuring the protection of Virginia employees ffom occupational safery and health hazards ‘VOSH has along history of working cooperatively with employers to achieve that protection.” It also has the legal authority to enforce applicable laws, standards, regulations and Executive (Orders in situations where employers decide they do not want to take advantage of a cooperative ‘working relationship, Va, Code § 40,1-51.1.A and Governors Executive Orders Va, Code § 40.1-S1.1.A, often referred to as the “general duty clause” provides that ‘A. It shall be the duty of every employer to furnish to each of his employees safe employment and a place of employment that is free from recognized hazards that are ‘causing or are likely to cause death or serious physical harm to his employees and to comply with all applicable occupational safety and health rules and regulations ‘promulgated under this ttle The general duty clause can be used by VOSH to enforce mandatory requirements in Governor's Executive Orders through the issuance of civil citations and penalties. Current maximum penalties in Virginia for VOSH violations are Serious and Other-than-serious $13,277 Willful and Repeat $132,764 Feilure-o-Abate $13,277 per day + Section B.1 of Eecuive Order 67, Tir Amended * ont, eatin an ning mera or ee standard canbe fd mci st educator andsIndetermining the level of civil penalties issued for any particular violation, VOSH considers the “size ofthe business of the employer being charged, the gravity ofthe violation, the good faith of the employer, andthe history of previous violations” Va. Code § 40.1-49.4.4.4(a) In addition, the Virginia Safety and Health Codes Board recently adopted an Emergency Temporary Standard (ETS) on COVID-19 which requires employers to provide certain protections for employees potentially exposed to SARS-CoV-2 related hazards and job tasks in the workplace. A copy of the ETS and outreach, raining and education information can be found at xi Veovid -andetriningy It isthe sincere interes of the VOSH program that your business will opt to work cooperatively with VDH and VOSH in this case to avoid the necessity for enforcement action. Please read very carefully what is discussed below so that you have a clear understanding of the potential consequences of any decision to not provide a safe and healthy workplace for your employees. Va. Code §40,1-49 4,1 Enforcement ofthis title and standards, rules or regulations for safety and inal, orders of Commissioner, proceedings in circuit cout; injunctions, penalties, Va, Code §40,1-49.4.A, provides that 1. IF the Commissioner has reasonable cause to believe that an employer has violated any safety or heath provision of Title 40.1 or any standard, rule of regulation adopted pursuant thereto, he shall with reasonable prompiness issue a citation to the employer. 4.(@) The Commissioner shall have the authority to propose civil penalties for cited violations in accordance with subsections G, H, I, and J of this section. Iti our understanding that you have chosen not to comply with a request from VDH to comply with applicable provisions of the Executive Orders AND/OR Executive Orders and the ETS, ‘Which serve to protect employees from the spread of SARS-CoV-2, ‘Consequences of Failing to Comply with Mandatory Requirements in Executive Orders and the ‘VOSH Emergency Temporary Standard If you decide, notwithstanding the above representations, to refuse to comply with mandatory requirements in Executive Orders AND/OR Executive Orders and the ETS, VDH will be forced to refer the case to VOSH for possible inspection and potential citation and penalty Please understand that your continued refusal to comply could be considered by VOSH to constitute intentional and knowing, as contrasted with inadvertent, conduct by a court of law; and thus any violations may be considered willful violations, which carry a maximum possible ‘monetary penalty of $132,764.00. See 16 Va, Admin, Code § 25-60-10, “psa linviginingovivacoe/40.1-42.47Should you continue to assert that your company cannot comply with VDH’s request, you risk the possibility of incurring a VOSH inspection which could result insignificant consequences in the form of VOSH citations and potential wilful violations and civil penalties