You are on page 1of 8

February 9, 2021

NOTICE OF VIOLATION OF EXECUTIVE ORDER 72

Certified Mail 7018 2290 0002 1531 8344

Dr. Jerry Prevo, President


Liberty University
1971 University Blvd.
Lynchburg, VA 24515

Re: Executive Order 72

Dear Dr. Prevo:

This Notice of Violation of Executive Order 72 (Notice) is to inform you Lynchburg City
Health Department (LCHD) received 119 complaints from January 31, 2021, through noon,
February 1, 2021, your facility violated Executive Order 72 by holding an event, attended by
more than 10 persons, on January 31, 2021, at which attendees failed to wear face coverings and
or maintain social distancing. As a result, and to mitigate the spread of COVID-19, LCHD
issues this Notice and below provides justification for doing so and recommendations for
Executive Order compliance:

Chronology:

The information below provides context and background as to the basis for the actions contained
herein.

1. 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
No. 51.

2. In an effort to contain, control, and prevent further spread of COVID-19, on


March 17, 2020, Governor Northam announced additional measures to reduce
Liberty University
2/9/2021
Page 2 of 8

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) as a result of the 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 in a restaurant.

4. On May 26, 2020, Governor Northam issued Executive Order 63 and State Health
Commissioner Oliver issued Order of Public Health Emergency Five, requiring
patrons to wear face coverings while inside public buildings. Specifically, Executive
Order 63 authorized the 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 as a Class 1 misdemeanor
pursuant to § 32.1-27 of the Code of Virginia. The State Health Commissioner may
also seek injunctive relief in circuit court for violation of this Order, pursuant to §
32.1-27 of the 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 nine while inside the public areas noted above. Adults accompanying
minors age 10 through 18 shall use reasonable efforts 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 the
Commonwealth into Phase 3 and easing the temporary restrictions due to COVID 19.
Included in the Order is the requirement that businesses require employees in
customer-facing positions 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 to § 32.1-13 of the Code of Virginia, is punishable as a Class 1 misdemeanor
pursuant to § 32.1- 27 of the Code of Virginia. The State Health Commissioner may
also seek injunctive relief in circuit court for violation of this Order, pursuant to §
32.1-27 of the Code of Virginia. In addition, any agency with regulatory authority
over a business listed in section A may enforce this Order as to that business to the
extent permitted by law.”

6. On November 13, 2020, Governor Northam amended Executive Order 63 and


State Health Commissioner Oliver amended Order of Public Health Emergency Five
(effective November 16, 2020), requiring individuals over the age of five to wear face
coverings while inside public buildings. Specifically, Executive Order 63 authorized
the Virginia Department of Health to enforce the order, stating: “Any willful violation
Liberty University
2/9/2021
Page 3 of 8

or refusal, failure, or neglect to comply with this Order, issued pursuant to § 32.1-13
of the Code of Virginia, is punishable as a Class 1 misdemeanor pursuant to § 32.1-27
of the Code of Virginia. The State Health Commissioner may also seek injunctive
relief in circuit court for violation of this Order, pursuant to § 32.1-27 of the 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 age 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 Public Health Emergency
Seven (effective November 16, 2020), tightening Phase 3 temporary restrictions due
to COVID 19. Included in the Order was the requirement “[n]o alcoholic beverage
shall be sold, consumed, or possessed on premises after 10:00 p.m. in any restaurant”
and ordered “[c]losure of all dining and congregation areas in restaurants, dining
establishments, food courts, breweries, microbreweries, distilleries, wineries, and
tasting rooms between the hours of 12:00 a.m. and 5 a.m.” Also, the Order declared
“[a]ll public and private in-person gatherings of more than 25 individuals are
prohibited.” Additionally, the Order stated essential retail businesses must comply
with the “Guidelines for All Business Sectors expressly incorporated by reference…
and [e]mployers are required to provide face coverings to employees. If any such
business cannot adhere to these requirements, it must close.” The Order further
provided, “The Virginia Department of Health shall have authority to enforce section
C of this 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 as a
Class 1 misdemeanor pursuant to § 32.1- 27 of the Code of Virginia. The State Health
Commissioner may also seek injunctive relief in circuit court for violation of this
Order, pursuant to § 32.1-27 of the 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.”

8. On December 10, 2020, Governor Northam issued Executive Order 72 and State
Health Commissioner Oliver issued Order of Public Health Emergency Nine
(effective December 14, 2020), further adjusting certain temporary restrictions due to
COVID-19, which included certain commonsense viral surge restrictions designed to
mitigate spread of the novel corona virus. Included in the Order is a modified stay at
home order stating, “[a]ll individuals in Virginia should remain at their place of
residence between the hours of 12:00 a.m. and 5:00 a.m.”, as well as declaring, “[a]ll
public and private in-person gatherings of more than 10 individuals who do not live in
the same residence are prohibited.” Section III of the Order imposes requirements for
all Virginians to wear face coverings aged five and older in both indoor and outdoor
settings. The Order provides “[t]he Virginia Department of Health shall have
authority to enforce section III of this Order. The State Health Commissioner may
Liberty University
2/9/2021
Page 4 of 8

also seek injunctive relief in circuit court for violation of this Order, pursuant to §
32.1-27 of the Code of Virginia. 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 as a Class 1 misdemeanor pursuant to § 32.1-27 of the Code of Virginia.”

APPLICABLE LAW (in part):

§ 32.1-13. Emergency orders and regulations.

The Board may make separate orders and regulations to meet any emergency, not provided for
by general regulations, for the purpose of suppressing nuisances dangerous to the public health
and communicable, contagious and infectious diseases and other dangers to the public life and
health.

§ 32.1-27. Penalties, injunctions, civil penalties and charges for violations.

A. Any person willfully violating or refusing, failing or neglecting to comply with any regulation
or order of the Board or Commissioner or any provision of this title shall be guilty of a Class 1
misdemeanor unless a different penalty is specified.

B. Any person violating or failing, neglecting, or refusing to obey any lawful regulation or order
of the Board or Commissioner or any provision of this title may be compelled in a proceeding
instituted in an appropriate court by the Board or Commissioner to obey such regulation, order or
provision of this title and to comply therewith by injunction, mandamus, or other appropriate
remedy or, pursuant to § 32.1-27.1, imposition of a civil penalty or appointment of a receiver.

§ 44-146.17. Powers and duties of Governor.


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 of the Commonwealth in time of disasters.

The 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 or regulate the use,
sale, production and distribution of food, fuel, clothing and other commodities, materials, goods,
services and resources under any state or 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.
Liberty University
2/9/2021
Page 5 of 8

He may direct and compel evacuation of all or part of the populace from any stricken or
threatened area if this action is deemed necessary for the preservation of life, implement
emergency mitigation, preparedness, response or 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 as a Class 1
misdemeanor in every case where the executive order declares that 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 concerning a communicable
disease of public health threat that is issued by the State Health Commissioner for an affected
area of the Commonwealth pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title
32.1.

EXECUTIVE ORDER NUMBER 72 (2020) AMENDED ORDER OF PUBLIC HEALTH


EMERGENCY NINE (effective December 14, 2020)

COMMONSENSE SURGE RESTRICTIONS

CERTAIN TEMPORARY RESTRICTIONS DUE TO NOVEL CORONAVIRUS


(COVID-19)

Directive

Therefore, by virtue of the authority vested in me by Article V of the Constitution of


Virginia, by § 44-146.17 of the Code of Virginia, by any other applicable law, and in furtherance
of Amended Executive Order 51 (2020), 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:

B. OTHER RESTRICTIONS

1. All Public and Private In-Person Gatherings

All public and private in-person gatherings of more than 10 individuals who do not live in the
same residence are prohibited. A “gathering” includes, but is not limited to, parties, celebrations,
or other social events, whether they occur indoors or outdoors. The presence of more than 10
individuals performing functions of their employment or assembled in an educational
instructional setting is not a “gathering.” The presence of more than 10 individuals in a particular
location, such as a park, or retail business is not a “gathering” as long as individuals do not
congregate. This restriction does not apply to the gathering of Family members, as defined in
section II, subsection D, paragraph 2 living in the same residence.
Liberty University
2/9/2021
Page 6 of 8

2. Institutions of Higher Education

Institutions of higher education shall comply with all applicable requirements under the Phased
Guidance of Virginia Forward and the “Guidelines for All Business Sectors.” Any postsecondary
provider offering vocational training in a profession regulated by a Virginia state agency/board
must also comply with any sector-specific guidelines relevant to that profession to the extent
possible under the regulatory training requirements. Such professions may include, but are not
necessarily limited to: aesthetician, barber, cosmetologist, massage therapist, nail technician, and
practical nurse.

4. Enforcement – Other Restrictions

Violations of section II, subsection B, paragraphs 1 and 3 of this Order shall be a Class 1
misdemeanor pursuant to § 44-146.17 of the Code of Virginia. Any law enforcement officer as
defined in § 9.1-101 of the Code of Virginia including the Virginia Department of State Police
may enforce these restrictions.

III. REQUIREMENT TO WEAR FACE COVERING

A. Face Coverings Required – Indoors

1. All individuals in the Commonwealth aged five and older must cover their mouth and nose
with a face covering, as described and recommended by the CDC, if they are in an indoor setting
shared by others. This requirement applies to state and local government settings, train stations,
bus stations, and intrastate public transportation, including buses, rideshares, trains, taxis, and
cars for hire, as well as any waiting or congregating areas associated with boarding public
transportation. This requirement shall not apply in any area under federal jurisdiction or control.

2. This restriction does not apply to persons inside their personal residence.

3. Individuals may remove face coverings to participate in a religious ritual.

B. Face Coverings Required – Outdoors

All individuals in the Commonwealth aged five and older must cover their mouth and nose with
a face covering, as described and recommended by the CDC, when outdoors and unable to
maintain at least six feet of physical distance from other individuals who are not Family
members.

C. Face Coverings Required – Employees

All employees of all businesses listed in section II, subsections A and C shall wear a face
covering while working at their place of employment.

D. Face Coverings - Enforcement


Liberty University
2/9/2021
Page 7 of 8

1. The Virginia Department of Health shall have authority to enforce section III of this
Order. The State Health Commissioner may also seek injunctive relief in circuit court for
violation of this Order, pursuant to § 32.1-27 of the Code of Virginia. 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 as a Class 1 misdemeanor pursuant to §32.1-27 of the Code of Virginia.

Observations and factual understanding:

1. A spreadsheet listing the particulars of each complaint is attached (Exhibit 1). In


summary, the complaints allege that a large group, primarily but not exclusively
students, attended a snowball fight on the Liberty University Campus. The
complaints further allege attendees were not wearing face coverings and were not
maintaining social distancing. Some of the complaints allege that this was an event
held at the invitation of Liberty University President Jerry Prevo.
2. A message posted on Twitter, at https://twitter.com/JerryPrevoLU, on January 31,
2021, stated “Snowball fight on the Academic Lawn at 2 p.m. – see you there, LU!”
A screen capture of the posting is attached. See Exhibit 2.
3. An online article in Liberty Champion, the official student newspaper of Liberty
University, dated January 31, 2021, includes a Twitter post that states “What better
way to enjoy a snowy Sunday than by having a snowball fight with your friends?!
@LibertyU President @JerryPrevoLU took that idea up a notch and invited all
students to join him in an epic snowball battle!” The article is posted here:
https://www.liberty.edu/champion/2021/01/the-great-lu-snowball-fight-of-2021/. A
screen capture of that article is attached. See Exhibit 3 enclosed.

4. The same online article referenced above includes a video that shows what appears to
be over 100 hundred people engaged in a gathering/snowball fight on the Liberty
University campus. Few, if any, of the participants appear to be wearing face
coverings and the video shows repeated instances of participants failing to maintain
six feet of social distancing guidelines required by EO 72 in outdoor settings.

Recommendations

Take the following steps to address your failure to comply with the terms of Executive
Order 72:

1. Ensure that all social gatherings, whether indoors or outdoors are limited to no more
than 10 persons.
Liberty University
2/9/2021
Page 8 of 8

2. Ensure that all students, faculty and staff on the campus comply with the requirement
to maintain six feet of social distancing, whether indoors or outdoors.

3. Ensure that all students, faculty and staff on the campus comply with the requirement
to wear face-coverings any time that six feet of social distance cannot be maintained
between people who are not part of the same household. This requirement applies
both indoors and outdoors.

This Notice sets forth above LCHD’s observations, alleged violations of Executive Order
72, and provides actions to address non-compliance. Please be advised if the violations alleged
are not remedied or violations continue, LCHD will seek enforcement action pursuant to
Executive Order 72, including Class 1 criminal misdemeanor and civil injunctive relief. Bear in
mind should the observations above include employees failing to comply with the Executive
Orders cited, LCHD will refer this case to the Virginia Department of Labor and Industry; the
agency tasked with ensuring the protection of Virginia employees from occupational safety and
health hazards. (See attached).

Please contact me at (434) 477-5956 or via email at jim.bowles@vdh.virginia.gov should


you have questions or wish to discuss this Notice, including recommended actions.

Sincerely,

James Bowles, MPH, REHS


Environmental Health Manager

Cc: David M. Corry, General Counsel


Liberty University

Kerry W. Gateley, MD, MPH, CPE


District Health Director

Julie Henderson, Director


Office of Environmental Health Services

Encl: Exhibits 1, 2 & 3

Rate