Brad KaplanAs of Monday, March 23, 2020, Illinois, Ohio, and Kentucky have issued executive orders for the purpose of limiting person-to-person contact to avoid the transmission of the COVID-19 virus. This article summarizes how each of these three states are defining “essential businesses” and “essential services.”

Illinois

Governor J.B. Pritzker issued Executive Order 2020-10 on March 20, 2020. Section 9 of the order includes in the definition of “Essential Infrastructure” in part the following activities that apply to real estate and construction: construction of food production/distribution facilities; health care facilities; public works facilities; building management; building maintenance; construction and repair of highways, railroads, and other means of transportation; waste and recycling removal; and telecommunications facilities and infrastructure. The order specifically states that it should be interpreted as broadly as possible.

Other important sections of the order include:

  • Section 12(a) permits stores that sell food and pharmaceuticals to remain open.
  • Section 12(e) permits gas stations, auto supply and repair, and bicycle shops to remain open.
  • Section 12(f) permits all financial institutions and title companies to remain open.
  • Section 12(g) permits hardware stores to remain open.
  • Section 12(h) permits the following “critical trades” to continue working: electricians, plumbers, cleaning and janitorial services, HVAC installers and repair, painting, and moving/relocation service providers.
  • Section 12(n) permits businesses that supply essential businesses may remain open.
  • Section 12(r) permits professional services providers (lawyers, accountants, insurance brokers/agents) and real estate services to remain open.
  • Section 12(v) permits hotels and motels to remain open, but food can only be sold for delivery or carry out.

Click here for the full text of the order.

Ohio

Governor Michael DeWine and the Ohio Department of Health issued a “Stay at Home” order on March 22, 2020, that became effective on March 23, 2020, at 11:59 p.m. In Ohio, all businesses are required to close to the public with the exception of “Essential Businesses & Operations.” Section 9 of the Ohio order permits the same activities as Section 9 of the Illinois order.

Other important sections of the order include:

  • Section 12(j) permits hardware stores to remain open.
  • Section 12(q) permits building materials, hardware, paint and other construction material distributors and sellers to remain open.

Kentucky

Governor Andy Beshear issued Executive Order number 2020-246 on March 22, 2020, that became effective on March 23, 2020, at 8 p.m. The Kentucky order mostly focuses on businesses that are life sustaining (food, pharmaceuticals). The Kentucky order permits distributors and sellers of building materials, equipment, and supplies to remain open. The Kentucky order is silent as to construction, manufacturing, distribution, and transportation industries.

A comprehensive federal order or directive would be useful now so that there is commercial consistency from state to state. Until such a federal order is issued, you should check each state’s website for updates on what is considered a permitted activity and what is not.

Ulmer’s Real Estate Practice Group is closely monitoring developments related to the COVID-19 pandemic and is available to provide strategic counseling and advice as this crisis continues to unfold. Please reach out to our attorneys if you have any questions.

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Brad Kaplan

Brad assists Owners, Operators and Receivers of Hotel, Office and Industrial properties with their Real Estate, Finance, Leasing, Construction and Organizational challenges; specifically, negotiating and drafting hospitality, purchase, sale, financing, leasing, construction, franchise and management agreements. He has in the past and presently…

Brad assists Owners, Operators and Receivers of Hotel, Office and Industrial properties with their Real Estate, Finance, Leasing, Construction and Organizational challenges; specifically, negotiating and drafting hospitality, purchase, sale, financing, leasing, construction, franchise and management agreements. He has in the past and presently serves as general counsel and national real estate counsel to several domestic and internationally based public and privately held companies. Brad represents foreign businesses doing business in the United States and U.S. businesses doing business abroad; and is a former Chairman of World Services Group (www.worldservicesgroup.com) an international consortium of legal and other professionals. Brad has achieved the highest rating, AV Preeminent®, from Martindale-Hubbell®. He is an active member of the Illinois Bar and maintains an office in both the firm’s Cincinnati and Chicago offices. Brad is the editor of the Real Estate Advisor Law blog, a tool that highlights articles and observations of Ulmer & Berne attorneys on various trends and opportunities affecting the commercial real estate and construction industry, and is a frequent speaker on internet and social media issues.