With news reports coming in from all parts of the country about entire states shutting down restaurants, canceling events, and being ordered to “shelter in place”, there is quite a bit of confusion about what’s going on in Austin.
As of March 17, 2020, the City of Austin issued an order of banning community gatherings. The order bans gatherings of 10 or more people and is currently in effect through May 1, 2020. The order makes it illegal to have 10 or more people together in a confined space be it indoor or outdoor. Most significantly, Mayor Steve Adler authorized law enforcement, code inspectors, and the fire marshal to charge people who violate the ban with a criminal offense punishable by up to a $1000 fine and up to six months in jail. In other words, it’s not just the police that have the authority to enforce this.
How did we get here (legally speaking)?
The order is issued in agreement with Section 418.108 of the Texas Government Code (Declaration of Local Disaster) and Section 2-6-23 of the Austin City Code. Obviously, this follows on the heels of the government’s response to the COVID-19 pandemic.
Under Section 418.108, a Disaster is defined as:
“… the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, other public calamity requiring emergency action, or energy emergency.”
Section 2-6-23 of the Austin City Code states that if a local disaster is declared by the Mayor under Section 418.108 of the Texas Government Code, the Mayor may issue public orders and direct City employees to take necessary action to:
- Implement the emergency management program;
- Comply with this article and Texas Government Code Chapter 418; and
- Protect public health, safety and welfare.
Section 2-6-24 state’s that anyone who violates an order issued by the authority set forth in 2-6-23 commits an offense punishable by up to a $1,000 fine and up to six (6) months in jail.
According to the Order issued, “community gathering” is defined as any indoor or outdoor event or convening….that brings together or is likely to bring together ten (10) or more persons at the same time in a single room or space. The Order further explains, “For clarity, this includes, but is not limited to, weddings, religious services, parties, funerals, sporting events, social events, conferences, and other gatherings.” This word likely gives broad powers of interpretation to a local city official to arrest/charge someone who is participating in an event that is “likely” to have 10 or more persons. This also opens the door for further search/investigation which can lead to other criminal charges for offenses completely unrelated to the gathering.
Uh…I need to ride the bus (or go to the hospital/grocery store/etc.) and there are 10 people already there. Do I get on?
There are exceptions to the ban. These include critical infrastructure (airport and transit facilities); government buildings providing essential services; schools or institutions of higher learning; grocery stores and pharmacies; and hospitals and other medical facilities.
There are additional exceptions for spaces within buildings. The order “does not prohibit gatherings of people in multiple, separate enclosed spaces” within a building. As examples, the order lists: school classrooms, different floors of a multi-level office, residential buildings (such as an apartment complex) and hotels, “so long as 10 people are not present in any single space at the same time.” Accordingly, 10 people in an individual apartment or single classroom would be a violation of the order. On the other hand, five separate classrooms containing six people in each separate classroom would be in compliance with the order.
So, what does all this mean? Even putting aside the Mayor’s order, common sense and the seriousness of the current COVID-19 crises dictate caution against large gatherings. The uproar by the general public regarding the large spring break party crowds on beaches in Florida and Texas are evidence of that. The Mayor’s order takes out a great deal of uncertainty with respect to what is appropriate under the circumstances, and on the other hand, what would now be considered criminal.
Common sense still plays a role.
Having read the excerpts and summary of the Mayor’s order, we are hopeful that the reader better understands the parameters. Can I go to the grocery store? Of course. What if I walk into the grocery store and there are 50 people in there, can I get charged with an offense? Nope. But if you go to your friend’s house for a “get together” and you walk through the front door to discover 20 people there, you may be on the hook if you don’t turn tail and head back to your car. The best approach is to err on the side of caution.
Because this order is recent, how extensively it will be enforced remains to be determined. Having said that, the seriousness of the COVID-19 crisis leads one to believe that the City will take violations very seriously.
There are several scenarios in which these illegal gatherings might come to the attention of the City:
- The gathering is public and obvious;
- The gathering is private, but loud, raucous or obvious (house party with multiple cars parked out front) and a neighbor or citizen reports it; or
- The gathering is private, but an attendee reports the violation.
If you or someone you know is arrested, contact us immediately to discuss the options. We believe that there’s always a legitimate argument to be made on your behalf and can almost always find a pathway to dismissal for cases relating to this.
Be smart. Stay safe. And keep your groups small.
Note: A copy of the Mayor’s order is available for review on the Austin Public Health Department website by clicking here.