In California, confusion over what businesses qualify as ‘essential’

After most businesses in California were closed under a “Stay at Home” order by Gov. Gavin Newsom on March 19 to prevent the spread of coronavirus, many proprietors didn’t always know who was exempt.

So some cannabis shops, gun stores, call centers and others remain open for business as owners wonder whether they are skirting the law.

The state has the most retailers in the nation, with one in four workers based at a real or virtual storefront, according to the California Retailers Association. The shutdown impacts not only their paychecks, but those of others along the supply chain, said association president Rachel Michelin.

“It is a little bit of a challenge in terms of the essential versus the nonessential,” she said. “We’ve been seeking clarity from the governor’s office and haven’t received a response.”

The confusion over which businesses are essential is most acute with gun stores, many of which stayed open after the stay-at-home order went into effect despite no mention of them being exempt.

Los Angeles County Sheriff Alex Villaneuva said this week that he would begin shutting down firearms retailers, while the sheriff of San Diego County, the fifth largest in the nation, said he’s not closing them in his county because they provide a “valuable public service.”

A group of plaintiffs, including the National Rifle Association, sought Friday to block the L.A. County closures by filing suit in Los Angeles federal court against Villanueva and Newsom. The government may not impose “deprivation of constitutional liberties during a time of crisis,” the suit argues.

Meanwhile, Sam Paredes, executive director of Gun Owners of California, said his group would ask “the Department of Homeland Security to declare that gun dealers and the gun industry are an essential business in a time in crisis.”

Marijuana retailers in the city of Los Angeles also kept their doors open despite an initial lack of clarity from the governor, who didn’t mention them in his order.

Customer Antoine Conners, right, wears a mask while being helped by budtender Chris Gomez at The Mission Cannabis Club dispensary in San Francisco, on March 19, 2020.Jeff Chiu / AP

By March 21, state and local officials said licensed cannabis stores could stay open.

“All cannabis businesses and the supply chain that services them are all deemed ‘essential,'” said L.A. shop owner Jerred Kiloh, director of the United Cannabis Business Association.

The next day, the state public health officer said marijuana stores, some of them medically licensed, would be protected as part of the public health sector.

Ambiguity crossed other types of stores, as well.

“You sit at a strip mall and see the Home Depot open and a Stein Mart is not,” Michelin said.

California-based RH, formerly known as Restoration Hardware, closed its stores but said some back-end employees in the state are still at work.

“We are continuing to operate critical parts of our business such as our call centers,” RH said in a statement that cited critical infrastructure activity listed by the state.

Joann fabric and craft stores said locations would stay open for pickup and its “classrooms” would host projects inviting volunteers to make “essential items” for medical workers, including masks and gowns.

Texas-based video game retailer GameStop initially argued that because it sold electronics, it could help people telecommute during isolation. But it later announced it would temporarily shutter all stores not already closed.

The New York Times reported this week that California-based music instruments chain Guitar Center still had stores open and that some customers were trying out gear and then returning it to shelves.

“All Guitar Center California stores closed either before or at the time requested by government authorities,” the retailer responded by email.

Former U.S. Attorney Harry Litman, a Southern California resident and host of the “Talking Feds” podcast, wrote in the Los Angeles Times that the governor’s stay-at-home order was “something of a mess.”

He said in a later interview that he would not be surprised if some businesses took the state to court over the shutdown. But he acknowledged no civil courts would be open anytime soon to hear challenges.

“I’m not criticizing the governor per se,” he said. “I think he exhibited leadership in coming forward quickly. There’s just a lot of questions.”

Andrew Blankstein and Eric Leonard contributed.

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