For a handful of days, it appeared as if Michigan’s casinos and other indoor gathering places could be facing a free-for-all concerning COVID-19–related health and safety guidelines.
Since the pandemic hit Michigan in March, forcing Detroit’s three commercial casinos to close for nearly five months, the state’s brick-and-mortar gaming industry has largely taken its marching orders from Gov. Gretchen Whitmer’s executive orders, which had been given the force of law by a 1945 statute that granted the Michigan governor power to continually and unilaterally declare states of emergency.
At MotorCity Casino Hotel, Greektown Casino-Hotel, and MGM Grand Detroit, these orders meant that the casinos had to remain closed until Aug. 5, after which they were allowed to reopen at 15% capacity and required to follow numerous other state-mandated public health guidelines, including universal mask-wearing among casino staff and customers and the installation of plexiglass dividers between individual players and between players and dealers at table games. Even tribal casinos, which operate on sovereign land and are not bound by state law, created COVID-19 health standards that resembled Whitmer’s casino protocols, despite operating at capacity limits higher than 15% and reopening before the commercial casinos did.
Earlier this month, however, that status quo was turned upside-down after the Michigan Supreme Court struck down the 1945 Emergency Powers Act and ruled that the governor could no longer declare states of emergency without legislative approval.
That ruling came down two weekends ago, and confusion reigned in the immediate wake of the Court decision. There were questions over whether Whitmer’s executive orders lost power the moment the court weighed in or if they’d remain in effect until the governor’s most recent emergency proclamation was set to expire, later this month. Some counties quickly declared local states of emergency and extended Whitmer’s public safety measures; others didn’t. Businesses wondered if they were still required to enforce statewide mask mandates and capacity limits, and local chambers of commerce called for guidance.
“There’s a lot of confusion out there,” Andy Johnston of the Grand Rapids Area Chamber told Bridge Michigan. “Businesses need clarity, consistency and transparency on decision-making.”
State authority shifts to health department, City of Detroit reinforces with its own guidelines
Friday, the Michigan Department of Health and Human Services (MDHHS) and Detroit Health Department provided that clarity for the state’s three commercial casinos, as each department took separate action to extend near-identical or identical versions of Whitmer’s COVID-19 requirements, both of which require the three Detroit casinos to continue operating at 15% capacity.
The state government replicated Whitmer’s orders though an existing law, unrelated to the Supreme Court decision, which grants the MDHHS director emergency powers during an epidemic to “prohibit the gathering of people for any purpose” and “establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.”
Besides loosening some restrictions on indoor service at bars, the health department’s order — which is enforceable by law — replicates the pandemic protocols of Whitmer’s previous executive orders. The portion of the order relevant to Detroit casinos reads: “Gatherings at non-tribal casinos may not exceed 15% of total occupancy limits established by the State Fire Marshal or a local fire marshal.”
“We understand people are confused and they want clarity, and that’s why we have issued orders that, as much as possible, are the same as the orders that were already in place,” MDHHS Director Robert Gordon told the Detroit Free Press. “There was this extremely disruptive court case and we’re trying to just reinstate.”
The state legislature’s Republican leadership criticized Gordon’s order, but even if the health department’s authority ends up being challenged or overturned by Whitmer’s political opponents, the Detroit Health Department announced local public health requirements that mimic the measures previously mandated by Whitmer’s executive orders, thus ensuring that the city’s three commercial casinos will continue operating by the same rules.
The highest court in our state couldn’t have been more clear in their ruling – they told @GovWhitmer to stop breaking the law by going it alone and to work with the Legislature to tackle the pandemic.
Clearly she didn’t get the message. https://t.co/jiMkUv5Ctr
— Sen. Mike Shirkey (@SenMikeShirkey) October 5, 2020
“We’re going to take all those orders that you knew about last week and they’re going to be in effect next week and the week after, no matter what the court does,” Detroit Mayor Mike Duggan said at a Friday press conference. “So what we are doing is guaranteeing the Detroiters will have the protection of Gov. Whitmer’s orders no matter what happens in the courts.”
Tribal casinos keeping safety measures in place
In addition to the three Detroit casinos, Michigan is also home to 24 tribal casinos, operating on sovereign land and owned by 12 independent tribes, none of which is subject to the state government’s orders. Legally, the tribal casinos would be within their rights to drop mask requirements, mandatory temperature checks for guests entering their premises, and other safety protocols they’ve adopted — and most tribal casinos in Michigan are located in rural areas where the state’s COVID-19 interventions have been unpopular. The tribal casinos were never required to follow Whitmer’s safety orders, but it’s possible that some might view the recent Supreme Court decision as a reason to loosen the standards they had enforced since tribal casinos began to reopen in May.
So far, however, no tribal casino in Michigan has announced a change to its COVID-19 health policies in response to this month’s Supreme Court ruling. Some tribal casinos released statements on their social media accounts, reassuring customers that previous safety protocols would remain in place, while others have simply kept their existing pandemic policies posted on their websites.
“As many guests are aware, the Michigan Supreme Court has announced that Governor Gretchen Whitmer no longer holds the authority to continue Michigan’s emergency order,” reads an Oct. 6 post on Gun Lake Casino’s Facebook page. “This new ruling has caused many to question what will happen next and if the safety modifications at Gun Lake Casino will change. … Gun Lake Casino is committed to our Play It Safe Initiative. The new Supreme Court rulings will not affect or change the Play It Safe Initiative.”
“The health and safety of our guests, team members and communities, has been, and remains, a top priority,” reads an Oct. 5 post by Kewadin Casinos, operators of five Northern Michigan tribal casinos. “As a reminder, at this time, masks are required to be properly worn while in public areas of our casinos, non-invasive temperature checks are taken upon entry and hand washing or sanitizing is recommended. We will continue to provide sanitizer throughout all Kewadin Casinos properties, frequently sanitize all high touch areas within our properties and continue following our Health and Safety Guidelines as we have since re-opening in June.”
“Our safety protocols regarding masks is still active,” management of Little River Casino in Manistee, Mich., reminded customers on Oct. 6. “Everyone must wear a properly worn mask that covers their nose and mouth or a properly worn face shield that wraps around their face and extends above their eyes and below their chin. … Bandanas, gaiters, and masks with valves are not acceptable face coverings.”
Little River, despite being among the first casinos in Michigan — tribal or commercial — to adopt CDC guidelines banning bandanas, neck gaiters, and masks with valves, has been traced back to two separate instances of COVID-19 exposure. Saturday, Michigan District Health Department #10, which covers Manistee, reported potential public COVID-19 exposures to an individual who tested positive after visiting Little River on Oct. 2, 3, and 4, and who was possibly contagious on those dates.
“If you were at [Little River] on the dates listed above, you should self-monitor for symptoms for 14 days from the possible exposure date,” the district said in a press release. The casino was linked to a similar case in late August.
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