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NJ CAR Analysis of Today’s “By Appointment” Dealership Sales Administrative Order

May 20, 2020

NJ CAR’s months-long effort to persuade Governor Murphy to permit new car and truck dealership showrooms to reopen “by appointment only” came to a successful conclusion earlier today. Late in the day, the Governor signed and released Administrative Order 2020-13, which allows in-person sales activity in dealership showrooms by appointment only and under strict conditions.

By way of background, Governor Murphy’s prior Executive Order 107, as clarified by subsequent Administrative Orders 2020-6 and 2020-10, allowed dealerships to conduct in-person vehicle service, online or remote retail sales activity, and limited test drives during the pandemic. All such activity by dealerships was subject to the strict social mitigation and public health practices first required by Governor Murphy’s Executive Order 107 and later expanded by Executive Order 122.

This new Administrative Order 2020-13 allows on-site retail sales activity by appointment only under the following strict conditions:

  • Limit occupancy at 50% of the stated maximum store capacity and require all customer visits, including sales, to be by appointment only;
  • Establish hours of operation, wherever possible, that permit access solely to high-risk individuals, as defined by the CDC;
  • Install a physical barrier, such as a shield guard, between customers and salespersons wherever feasible or otherwise ensure six feet of distance
    between those individuals, except at the moment of payment and/or exchange of goods;
  • Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
  • Provide employees break time for repeated handwashing throughout the workday;
  • Arrange for contactless pay options, pickup, and/or delivery of goods wherever feasible. Such policies shall, wherever possible, consider populations that do not have access to internet service;
  • Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
  • Require frequent sanitization of high-touch areas like restrooms, credit card machines, keypads, and counters;
  • Place conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance;
  • Demarcate six feet of spacing in check-out and service lines to demonstrate appropriate spacing for social distancing; and
  • Require workers and customers to wear cloth face coverings while on the premises, except where doing so would inhibit that individual’s health or where the individual is under two years of age, and require workers to wear gloves when in contact with customers or goods. Businesses must provide, at their expense, such face coverings and gloves for their employees. If a customer refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual. Nothing in the stated policy should prevent workers or customers from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved. Where an individual declines to wear a face covering on store premises due to a medical condition that inhibits such usage, neither the essential retail business nor its staff shall require the individual to produce medical documentation verifying the stated condition.

Notably, the portions of prior Administrative Orders 2020-6 and 2020-10 that address dealership operations are replaced by this new Administrative Order 2020-13, but only to the extent that there is a conflict between those prior Orders and the new Order.

On that point, Administrative Order 2020-13 specifically states that car dealerships may continue to permit customers to test drive vehicles provided that they permit the individual to access the vehicle alone, and provided that they appropriately clean and sanitize the vehicle after such test drive if the customer does not purchase the vehicle. Accordingly, to the extent that prior Administrative Order 2020-10 appeared to require that test drives could only occur after an online or remote sale was completed, Administrative Order 2020-13 appears to dispense with that requirement. In other words, test drives now appear to be permitted before an in-person sale is finalized. Further, online and remote sales activity still appears to be permissible based on Administrative Order 2020-13’s stated preference for “contactless pay options, pickup, and/or delivery of goods” whenever possible.

Administrative Order 2020-13 takes effect at 6:00 a.m. on May 20, 2020. This new Order will remain in effect until further notice from the Governor’s Office.