Business re-opening Iimbo is on Fed’s radar as necessity for closures lessens

It has been several days since the governor gave the state a “yellow light” to reopen more businesses, but official dates for many industries are still up in the air, and the feds are warning states against moving too slow.

The U.S. Department of Justice is keeping a close eye on how much longer closures and quarantines go on, warning restrictions can only last as long as absolutely necessary, and saying treatment of some businesses as “non-essential” can run afoul of the Constitution.

Unemployed workers and small businesses statewide got their hopes up this week when the governor unveiled a long-awaited phased reopening plan. The color-coded chart said “we are here” in a yellow zone called “act with care,” ready to move beyond the orange “safer at home” phase which came after the red “stay at home” orders. The plan also showed just about every business and organizational sector getting a green light in the yellow zone, with the exception of large gathering-spaces and bars.

But exactly when can the thousands of businesses that fall into the green-light categories open? Most still don’t know for sure. The governor left it up to each mayor to take it from there, suggesting early June. But so far it’s been a hodgepodge mix of county permissions — haircuts ok on Maui on Monday, land tours and activities ok on Kauai on Friday, church service coming up on Oahu and indoor dining around the corner for Honolulu County on June 5. Businesses on the Big Island are still waiting their county’s reopening plan.

Besides the sectors the mayors can oversee, there are a bunch of state-permitted industries in limbo because they are not under county jurisdiction and mayors cannot grant them an opening date. KHON2 asked the governor Thursday: “What about the industries that don’t fall within county jurisdiction? Is there another state emergency proclamation or another mechanism by which they get approval to open? Many are in limbo without a State Emergency Proclamation and no county oversight of their particular industries. 

“Certainly we’re working with all the counties and the various professional groups and organizations to identify any activity or any businesses that are not contained in the general proclamations,” Gov. David Ige said, “and then we’ll be working with the mayors to ensure an orderly reopening for all businesses.” 

Many businesses still don’t know what to pencil in on the calendar to get people back to work.

“If they fall in that medium-risk category it would be best just to give a carte blanche opening date for medium-risk,” said Lt. Gov. Josh Green. “That would be the simplest thing to do. And then let people be responsible. Socially distance when necessary, and don masks and so on when they’re up close, say if they’re teaching a horseback riding lesson, or doing a flight class, or a boating team takes somebody out. As long as it comports with the safety protocols, it should just be a ‘go.’ “

The delay is catching the attention of the feds. Last month U.S. Attorney General William Barr asked districts nationwide to monitor state and local policies for infringement of constitutional protections. U.S. Attorney for the District of Hawaii Kenji Price told Always Investigating they’re on the lookout for individual as well as business infringements, saying: “The Department of Justice respects and recognizes the significant legal authority our state and local officials have to protect our communities during an emergency.  The rapid spread of COVID-19 presents such an emergency, and may justify certain restrictions imposed by state and local officials.  However, restrictions must last only as long as they are absolutely necessary, and state and local officials should tailor them as the situation progresses.  Importantly, decisions regarding what businesses are ‘non-essential’ should not be arbitrary.”

Price added: “The Department of Justice will monitor restrictions imposed by officials here in Hawaii and elsewhere, and may take action when they raise concerns under the U.S. Constitution or federal law.  However, it is important to note that our ability to intervene is not limitless, and in many cases we do not have authority to intervene on our own, but must file a statement of interest in litigation brought by another party.  Our assessment of whether and when to intervene in any given case will depend upon the facts and, of course, what we believe best serves the interests of justice.”

So what are the business rights at stake? Hawaii attorney Robert Thomas, from the firm Damon Key Leong Kupchak Hastert explains: “It’s turning the switch off on people who haven’t been shown to have done anything wrong, anything different than the rest of us who initially could either get sick or potentially could be carriers. There hasn’t been anything else to indicate that a particular business or categories of businesses be non-essential.”

Thomas said even under a state of emergency, governors and mayors have boundaries: “Remember your obligation to impact as few people as possible in the least way possible while still accomplishing the ultimate goal, which is to keep us healthy and avoid public health risks.”

He said authorities have to balance individual and corporate rights better going forward based on today’s data and science.

“The government’s job in this case is to tailor what it’s doing as best it can with the information it has now,” Thomas said. “We can see at the start of this thing maybe the right solution was a complete off switch. More and more as this thing goes on longer and longer, that does not seem to be the right way to approach it.”

The longer it takes to lift shutdowns — especially as health indicators point to a green light — the more damages accrue for small businesses, and taxpayers could end up holding the bag.

“People have rights and one of those rights is to earn a living, one of those rights is to have compensation if your property is pressed into public service. If you’ve got property or businesses you can no longer use, the courts in the right circumstances will see that as a ‘taking,’ ” Thomas explained. “If the government in certain circumstances needs to shut down your used of property in order to benefit the public, that’s no different than HART taking your property for rail. It’s the same thing.”

So while the feds watch for constitutional overreach going forward, he says businessowners suffering steep losses and even permanent closure have grounds for claims going backward.

“I would say the most obvious case for compensation is a business that went out of business while it was shut down,” Thomas said. “It’s not the length of the restrictions that necessarily matter. It’s the impact on the business or the person.”

We’ll continue to follow up on county by county opening dates and implications for sectors not yet given a pathway to opening.