CONSTRUCTION INDUSTRY PERSPECTIVE ON THE DALLAS COUNTY SAFER AT HOME ORDER AS AMENDED 04-17-2020

Dallas Order on mask and how it impacts the construction industry from a Dallas construction Lawyer

Updated 04.18.2020

On April 16, 2020, County Judge Clay Jenkins issued his Amended Safer at Home Order (the “Dallas Order”). The Dallas Order supersedes all other county-level restrictions and prior Safer at Home Orders. On April 17, 2020, the Dallas City Council held an emergency meeting to vote on amendments to Judge Jenkins’ original order.

Between Judge Jenkins’ Order and the City Council Amendments, there are three notable things to consider.

But in fairness, this article covers a lot of ground, so I am front-loading it with the most important points, which are valid as of 04.18.2020, and which are subject to being altered in future orders.

  1. BOTTOM LINE ON CONSTRUCTION PROJECTS IN DALLAS: Residential and commercial new builds are allowed. Residential and commercial maintenance work is allowed. Elective additions and maintenance to either are banned by Judge Jenkins, but allowed by Governor Abbott, so the permissibility of that particular work is in a gray area until decided by a court or resolved between the politicians.
  2. BOTTOM LINE ON MASKS: Individuals in Dallas County must wear some sort of covering over the nose and mouth when patronizing an Essential Business, using public transportation, taxis or ride shares. Thankfully, the Dallas Order relieves “the public” of this burden while eating. Other times when “We The Public” may show our Full-Monty face are when riding in a vehicle; engaging in an outdoor activity; or when wearing a mask poses a significant medical threat, and/or when the person, for whatever circumstance, is unable to remove the mask without assistance. You will not be arrested for merely violating the mask requirement, but don’t be surprised if such a violation is tacked on to any other list of charges made against an individual who comes into contact with law enforcement for reasons other than violating the mask requirement.
  3. THIRD – BOTTOM LINE ON CRAFT STORES: Craft stores may now open for business in Dallas County.
    The amended, final Dallas Order can be found here.

From the Construction Industry Perspective – the practical impact that the Dallas Order will have on the construction trades remains both unchanged, and unclear.

To fully understand the reach of the Dallas Order, (and that of any other municipal or county order in Texas) requires considering it alongside Governor Abbott’s controlling Executive Order on the same topic. For now, the Governor’s Executive Order on Essential Services in the COVID environment is his Order numbered GA-14 (Relating to statewide continuity of essential service and activities during the COVID-19 disaster) (the “Texas Order”). Governor Abbott may release additional orders from time to time, and those orders may, or may not supersede GA-14.

Check back often for updates.

Issued on March 31, 2020, the Texas Order from Governor Abbott supersedes any conflicting order issued by local officials which seek to restrict essential services allowed by the Texas Order. Meaning: if the Governor defines an activity as an essential service, and allows it to move forward, then no county or local order can forbid it.

The Dallas Order does not appear to impose any additional restrictions on the type of construction work that can be performed in Dallas County, but it does add the notable restriction making it mandatory for individuals to wear masks when leaving the house for most purposes that would bring them in contact with others. More discussion on this below.

But back for a moment to construction – here for your convenience is an assessment of whether various construction activities are allowed in Dallas County.

ActivityDallas OrderTexas OrderLikely Results*
ConstructionAllows Construction for public works, residential, commercial and schools. Elective additions and maintenance are prohibited.Allows Construction for public works, residential, and maintenance for Commercial. New build Commercial is in a gray area.Public works and infrastructure construction are allowed for both.
Residential and Commercial new builds are allowed, since the Dallas Order permits, and the Texas Order does not strictly Forbid.
However, Dallas’s restrictions on elective additions and maintenance may found unenforceable if challenged, because they appear to be an attempt to restrict an activity which is allowed by the Texas Order allows.**

Judge Jenkins’ Order requires “the public” to wear cloth in most instances, subject to the exceptions discussed below

Judge Jenkins’ Dallas Order eloquently collectively refers to the people in and of Dallas County as “the public,” and requires the public to wear cloth masks when outside their homes, subject to some exceptions. But not the good masks. In the Dallas Order, Judge Jenkins informs us that N-95 respirators and surgical masks are critical supplies, no longer for the masses, but which must now “continue to be reserved for healthcare workers and first responders,” even though for weeks we have been subjected to finger-wagging media talking heads telling us we must believe the obvious fiction that these same masks only work from the inside-out.

More evidence of irony’s continued existence, and an interesting turnabout for our convenience-store-owner clients, is the Dallas Order now allows business owners to refuse entry or service to anyone not wearing a mask.

After Judge Jenkins issued his version of the Order, the Dallas City Council met in emergency session, then voted 3-2 to amend the edgier elements , and to make it clear that individuals will not be arrested or penalized for merely failing to wear a mask when outdoors.

Hat tip to the City Council for this amendment, because the Jenkins Order included significant penalties for violation, including fines up to $1,000.00 and up to 180 days in jail. In fact, while the Jenkins version of the Order excluded children under 2 years of age from the mask requirement, it did contain a provision that children between 2 and 9 who fail to comply with the Dallas Order subject their parents to those same fines of up to $1,000.00 and up to 180 days in cash. And I am not kidding. In fact, all individuals over two years old not medically excluded faced these same penalties for failure to comply with the Jenkins Order.

The Dallas City Council deems Hobby Lobby and other craft stores “essential,” less than two weeks after Judge Jenkins ordered them to close.

In response to Judge Jenkins’ attempt to shut them down less than two weeks ago, craft store giants Michaels, Joann and Hobby Lobby all pointed out that they sell materials necessary for “the public” to make their own masks and other “COVID PPE©” (my terminology, not theirs). Nonetheless, in an attention-grabbing tour de force, Judge Jenkins deemed them non-essential, and ordered them to close on or before April 3, 2020.

Then, on April 16, 2020, while the craft giants remained closed under his own order, he issued a new order compelling “the public,” under penalty of fine and imprisonment, to wear cloth masks, but not N-95 or surgical masks. Clearly this would leave many people in a catch-22, even considering the T-shirt mask instructions he distributed. Again, hat tip to the City Council for making this observation and ordering that craft stores are again essential and can open so that “the public” can obtain supplies necessary to conform with the Dallas Order.

Brian Benitez

Brian Benitez is a partner at Ensley Benitez Law, P.C., whose practice emphasizes litigating matters important to small and medium businesses arising from areas including Construction Law, Employment Law, Contracts Law, Texas Property Code Liens, and Agency Law (e.g. representing businesses against government entities, such as OSHA, EEOC, TDI, TX Comptroller). Ensley Benitez Law, P.C., 8140 Walnut Hill Ln., Ste. 835, Dallas, TX 75231 469-501-5562, brian@eblawtexas.com.