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Analysis: No, you won’t have to show papers if you’re outside your home in Tennessee

It was bound to happen, and it is. Hours after Tennessee Gov. Bill Lee issued an executive order requiring residents to stay at home if they aren’t engaged in essential activities, many residents are wondering if they’re going to need papers from their employer to get to work, or if they’re going to risk a citation if they’re going to a doctor’s appointment or the store — and many well-meaning residents are mistakenly assuring them that they will indeed have to as they attempt to clear up the matter on social media.

Gov. Lee’s “stay at home” order, issued Thursday afternoon, is creating confusion — as it was bound to do — because the earlier order that serves as its backbone is essentially contradictory. It says residents shouldn’t be outside their home for most reasons, then lists exemptions that excuse most reasons for being outside the home.

Monday’s order, amended

Gov. Lee’s Executive Order 23, filed with the Tennessee Secretary of State late Thursday afternoon, is short and sweet. It is a single page, and it amends Executive Order 22, which was filed Monday.

Executive Order 22 was Gov. Lee’s “safer-at-home” order, which urged residents to not leave their home unless they were engaged in essential activities. Thursday’s “stay-at-home” order amended Monday’s “safer-at-home” order by replacing a single paragraph — and, within it, a single word.

The paragraph in question read like this in Monday’s order: “Because staying at home as much as possible for a temporary period of time will protect the health and safety of Tennesseans by limiting the spread of COVID-19 and preserving health care resources, all persons in Tennessee are urged to stay at home, except for when engaging in Essential Activity or Essential Services as defined in this Order.”

Thursday’s order amended Monday’s order to change the paragraph to this: “Because staying at home as much as possible for a temporary period of time will protect the health and safety of Tennesseans by limiting the spread of COVID-19 and preserving health care resources, all persons in Tennessee are required to stay at home, except for when engaging in Essential Activity or Essential Services as defined in this Order.”

The emphasis is added by the Independent Herald to show the single word that was changed by Thursday’s executive order.

In essence, Thursday’s order changed Monday’s order from requesting that residents stay home unless performing essential activities to mandating them to stay home unless performing essential activities. But just as the proof is in the pudding, the teeth of Executive Order 23 — or, rather, lack thereof — is the various activities exempted as “essential” in Executive Order 22.

No real changes

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Knox County Mayor Glenn Jacobs took to social media to criticize Gov. Lee’s order on Thursday, saying that it goes too far.

“I cannot applaud any government monitoring the movements of its people and mandating virtually everything we are allowed to do,” Jacobs said.

But Thursday’s order didn’t really change much about Monday’s order.

“The only difference in this latest order and EO22 is changing the wording of the ‘safer at home’ clause being recommended to now being mandatory,” said Scott County Mayor Jeff Tibbals upon reviewing the governor’s new order on Thursday. “All services/businesses that were considered nonessential and essential remain the same.

“I have already submitted a list of questions to get clarification on the new order,” Tibbals added. “Too much of the order seems contradictory when the term mandatory or required is used versus recommended.”

Executive Order 21, also signed by Gov. Lee on Monday, required non-essential businesses to close. While Order 21 didn’t specify essential businesses, it did specify non-essential businesses as those “that perform close-contact personal services” and “entertainment and recreational gathering venues.”

Among the former, listed specifically by the governor: Barber shops, hair salons, waxing salons, threading salons, nail salons or spas, spas providing body treatments, body-art facilities or tattoo services, tanning salons or massage-therapy establishments and massage services. Among the latter: Night clubs, bowling alleys, arcades, concert venues, theaters, racetracks, indoor children’s play areas, adult entertainment venues, amusement parks and roller or iceskating rinks.

Executive Order 22 specified a long list of businesses considered essential. In limbo: the businesses that were listed as neither non-essential in Order 21 or essential in Order 22. That includes most retail, with the exception of things like grocery stores and hardware stores. Order 22 specifically says that “businesses or organizations that do not perform Essential Services shall not be open for access or use by the public or its members.” But, as a general rule, many of the other retail stores, such as clothing stores, book stores, furniture stores and electronics stores, have remained open, since they were not specified as non-essential. (Any business that operates with 10 or fewer people — including employees and customers — inside the business at a time is defined as essential, which would include most small retail stores.)

And, just to be clear, because there has been a lot of discussion about it on social media in recent days: Executive Order 22 defined businesses like Huntsville’s Brimstone Recreation as essential, stating: “Any business related to Essential Activity … including any outdoor recreation area, park, site, or trail that provides opportunities for outdoor recreation while maintaining adherence to the Health Guidelines.”

Reasons for being outside the home

This is where it gets interesting. Under Executive Order 22, which was modified by Thursday’s order, Tennesseans are required to stay home unless they’re performing an essential activity.

The order begins by citing President Donald Trump’s guidelines, which are recommendations and not requirements, that Americans do seven specific things. Among them: “avoid discretionary travel and social visits.”

But Order 22 goes on to name a long list of essential activities that permits travel outside the home. Among them:

• “Engaging in activities essential to a person’s health and safety or the health and safety of family or household members, persons who are unable or should not leave their home, or pets…” This includes visiting the doctor, a pharmacy, and similar activities.

• “Obtaining necessary services or supplies for persons and their family or household members…” This includes groceries, household products, supplies required to work from home, auto parts, and related goods.

• “Providing, facilitating, or receiving delivery or curbside carry-out delivery of online or telephone orders…” Among other things, this includes restaurants.

• “Engaging in outdoor activity, provided that persons [follow] the Health Guidelines to the greatest extent possible.” This includes just about any outdoor activity, including hiking, golf, tennis, kayaking or swimming. It also includes “driving or riding in a vehicle…” That would apply to ATV riding, as well as leisure drives.

• “Caring for or visiting a family member, friend, or pet in another household…” That one is a little odd. But, basically, you can visit your parents, your grandparents, your children, your friends … or their pets.

• “Visiting a place of worship or attending a wedding or funeral…” No, churches haven’t been ordered closed in Tennessee, contrary to popular belief. It’s just that the health guidelines — no more than 10 people in attendance — are required to be followed.

No restrictions on moving about?

Based on all of the exceptions, the answer to the most common question: “Do I need papers from my employer if I’m stopped by law enforcement?” would be a resounding, “No!” For starters, the majority of businesses in Tennessee have not been required to close. For another, there are simply too many other exclusions other than going to work. Then there’s what appears to be the catch-all exclusion: “Driving or riding in a vehicle.” As long as simply driving is considered a form of outdoors recreation, it would be almost impossible to limit residents’ movements outside their home.

Therefore, Mayor Jacobs’ concern that Gov. Lee’s executive order unnecessarily infringes upon the civil liberties of Tennesseans appears to be rather moot. It appears that Gov. Lee’s mandate lacks muscle. In fact, it would seem that of all the states that have issued “shelter in place” or “stay at home” orders, Tennessee’s might be the weakest of them all.

To be clear…

Oneida’s Dustin Burke, a Tennessee Wildlife Resources Agency law enforcement officer, said that Gov. Lee’s executive order has no impact on residents’ ability to partake in outdoors activities — which would include the opening of the state’s turkey hunting season this weekend.

“Hunting, fishing, boating, hiking, and OHV riding and all other outdoor recreation is an essential activity!” Burke said. “This in short means, go outside, be productive, have fun BUT PLEASE for your safety and others, follow health guidelines while enjoying your time outside!”

Note: The above embedded video contains a misstatement, regarding not being able to load up your family and visit grandma’s house. In fact, Gov. Lee’s Executive Order 22 defines visiting family as an essential activity.

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Ben Garrett
Ben Garrett is Independent Herald editor. Contact him at bgarrett@ihoneida.com. Follow him on Twitter, @benwgarrett.
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