October 14, 2020 | By Elizabeth Wolstein, Partner | Source
“On October 6, 2020, Governor Cuomo issued a new executive order closing “non-essential” businesses in certain zip codes based on increased COVID positivity rates in those zones.[1] Seven months into the pandemic, it is time to reevaluate the constitutionality of this approach that has so devastated small businesses.
At the start of the pandemic New York and other states took drastic executive action to try to slow the spread of COVID-19. One approach was to distinguish between “essential” and “non-essential” businesses. Businesses governors considered “essential” were allowed to stay open, while businesses deemed non-essential were required to close. Among the states that drew this distinction, closing or dramatically limiting the operations of “non-essential” businesses, were New York, New Jersey, Connecticut, Pennsylvania, Massachusetts, Virginia, North Carolina, and Florida.
Although the states’ executive orders typically failed to articulate any public health justification for closing some businesses while allowing others to operate—e.g., why would a big box store pose less of a risk of transmission than a neighborhood shoe repair shop—the courts gave states wide latitude to implement sweeping restrictions on the most basic liberties, including going outside, working at your job, and operating your business. For example, in mid-April, the Pennsylvania Supreme Court rejected statutory and constitutional claims brought by businesses deemed “non-life-sustaining” under Governor Wolf’s executive order. See Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. Apr. 13, 2020). One of the plaintiffs was a real estate broker who was banned from conducting business either from her office or from her home, even though insurance brokers and other professional were allowed to work out of their offices. Another plaintiff was a golf course. All the plaintiffs said they could operate their businesses using COVID prevention and mitigation measures. The court rebuffed their equal protection, due process, separation of powers, takings, and First Amendment challenges. See id. at 881-82, 892-903.
Other cases from the early period of the pandemic were equally dismissive of legal challenges by businesses deemed non-essential by a wave of the governor’s hand. See Prof’l Beauty Fed’n. of Cal. v. Newsom, 2020 U.S. Dist. LEXIS 102019, at *5-6 (C.D. Cal. June 8, 2020) (denying TRO brought by cosmetology businesses contending that differential treatment of, on the one hand, “espresso bars, recreational cannabis dispensaries, pet grooming, [and] chiropractors,” which were permitted to operate, and, on the other hand, “the hair, skin, nail care, and electrolysis industries,” which were required to close “regardless of the measures taken by these professionals to reduce or eliminate the risk of the virus spreading”); Hartman v. Acton, 2020 U.S. Dist. LEXIS 72068, at *7 (S.D. Ohio Apr. 21, 2020) (denying TRO to bridal shop deemed non-essential; plaintiffs “have failed even to demonstrate a cognizable [constitutional] injury”); CommCan, Inc. v. Baker, 2020 Mass. Super. LEXIS 70, at *3 (Suffolk Co. Super. Ct. Apr. 16, 2020) (denying preliminary injunction sought by adult-use marijuana establishments deemed non-essential, where liquor stores and medical marijuana facilities were deemed essential and could remain open; while plaintiffs made “a convincing showing that there may be other ways to address these concerns that would allow adult-use marijuana establishments to restart their businesses without harming public health or safety,” “the Governor was not legally required to implement a different alternative or ensure that his emergency closure orders impose the smallest possible economic burden on adult-use marijuana establishments”).
Seven months into the states’ experiments with executive order shut downs, the constitutional landscape has changed. Whatever latitude for constitutionally questionable orders may have existed when the pandemic was new, there is no longer a legal justification for prohibiting people from earning a living if they work in or own what a governor deems a “non-essential” business.
For one thing, the underlying facts have changed markedly. New York reopened “non-essential” businesses over the summer while keeping the virus at bay. Use of masks and social distancing is universal, supplemented by temperature checks and plexiglass barriers on the part of some businesses. In addition, medical understanding and therefore treatment options have improved since the early days. Multiple studies now suggest the lockdowns were not effective,[2] and medical and public health professionals have raised concerns about their “devastating effects on short and long-term public health.”[3] Finally, some states’ (including New York’s) selective enforcement of social distancing requirements has undermined the rationale for business closures. Over the summer protestors were allowed to march shoulder to shoulder, unmasked and emitting droplets with their chants, with no finger wagging or enforcement by governors and mayors. If such gatherings were not a risk to public health, why should a nail salon with a mask and cleaning protocol not be allowed to operate? Closing businesses that can mitigate risk looks more arbitrary than ever.”