Emergency Order #3 Limiting Public Gatherings

October 7, 2020

On October 6, 2020 the state of Wisconsin issued Emergency Order #3 Limiting Public Gatherings. Emergency Order #3 goes into effect Thursday, October 8th at 8:00 A.M. and is designed to limit the size of crowds at indoor locations such as restaurants and bars. The order will expire on November 6, 2020.

Emergency Order #3 only applies to public gatherings, which it defines as “an indoor event, convening, or collection of individuals, whether planned or spontaneous, that is open to the public and brings together people who are not part of the same household in a single room.” Places that are “open to the public” include, but are not limited to:

  • Rooms within a business location, store, or facility that allow members of the public to enter.
  • Ticketed events where tickets are available for free or for purchase by any individual or by any individuals.

In such cases, Emergency Order #3 limits public gatherings to no more than 25% of the total occupancy limits for the room or building, as established by the local municipality. If the indoor space does not have an occupancy limit, then the limit is no more than 10 people.

Places that are not open to the public are not subject to the order. If the gathering is outdoor, it is not considered a “public gathering” subject to the Order. Outdoor seating at restaurants is also not subject to the order. If the gathering is indoor, but not open to the public, it is not subject to the Order. Emergency Order #3 includes other specific exceptions.

In short, Emergency Order #3 does not apply to the following:

  • Childcare settings
  • Schools, colleges, and universities
  • Healthcare and public health operations
  • Religious events and churches
  • Political rallies and demonstrations
  • Private residences not open to the public
  • Public infrastructure
  • State and local facilities
  • Federal facilities
  • Outdoor worksites

Similar to other recent Orders, it is likely that this new Emergency Order will be challenged in court. Issued by Wisconsin Department of Health Secretary-designee Andrea Palm, the new Order relies on powers that permit the DHS secretary to “forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” This is a new legal strategy not tested when the Wisconsin Supreme Court struck down the Safer at Home Order on May 13th. In the previous ruling, four justices voted to strike down the Safer at Home Order, and three justices voted to uphold it. Since that decision, one of the four justices that voted in the majority, Justice Daniel Kelly, was replaced by Justice Jill Karofsky. It is not clear how this change may impact the Court’s review of this new Order.

Axley will provide updates on this issue as they arise. If you have questions about how this Order could impact your business, please contact an attorney for further guidance.