- Associated Press - Saturday, May 9, 2020

BLACK MOUNTAIN, N.C. (AP) - Joe Tyson, 70, thought everything was going smoothly with the reopening of his family furniture store - that is, until the Black Mountain police came knocking.

Tyson was baffled. He’d received a letter from the state confirming his business was allowed to operate under Gov. Roy Cooper’s Executive Order 121, provided they were able to implement the heightened social distancing and cleaning policies mandated in later orders.

Distance wouldn’t be a problem, he thought, since Tyson Furniture is a sprawling 70,000 square feet. Tyson studied the state and Centers for Disease Control and Prevention (CDC) guidelines and followed them to the letter, he said. Barriers were put up between employee desks, masks were worn and hand sanitizer flowed freely.

Tyson said he felt like he had no choice but to reopen for business on April 30. He’d kept his 48 employees home for a full month, March 26 to April 27, and nobody missed a 40-hour-week paycheck.

“We were facing the fact that we were going to run out of money,” Tyson said. “You’re trying to do what’s best for your employees. You’re also trying to do what’s best for your community…but you feel like you’re drowning as a small business because you can’t get any revenue stream in.”



“And everybody keeps sending bills,” Tyson said.

Now, he said he’s scrambling to pull all his ads from TV, radio and print because the Black Mountain Police informed him that the state’s blessing wasn’t enough - Buncombe County had to sign off, too.

“We’ve had so many conflicting signals about what we can do and what we can’t do, we’ve decided to just quit advertising,” Tyson said.

On April 23, Gov. Roy Cooper outlined a stepwise process to relax pandemic restrictions gradually once public health data indicates the virus’s spread is slowing.

In Phase 1 of that process, NC residents will be allowed to leave home for more commercial activities - including “shopping at certain retail stores” - though the governor hasn’t elaborated about which businesses that includes when pressed by journalists in statewide briefings.

But until then, what businesses are considered “essential?” And who makes the final call?

That conversation has been muddied by confusing terminology and contradictory statements during daily briefings with the governor and public health officials . Both business owners and would-be customers have been left uncertain about when they’d be breaking the law.

YOU DON’T HAVE TO BE ESSENTIAL TO BE AN ‘ESSENTIAL BUSINESS’

On March 23, Executive Order 120 laid out the now-familiar list of businesses that are required to close - either because they draw groups of people together ( like in gyms or movie theaters) or they require human-to-human contact ( like hair salons and tattoo parlors).

Since then, in the national dialogue on life during quarantine, the phrase “essential workers” has come to refer to people in front-line jobs like health care providers, grocery store employees and law enforcement officers.

But that conception of what is essential doesn’t translate to which businesses are allowed to operate in North Carolina.

When Cooper announced the official stay-at-home order with Executive Order 121, it included a new definition of “essential.” Beginning with Executive Order 121, any business, not-for-profit organization or educational institution that can operate while maintaining social distancing requirements between fellow employees and customers is allowed to.

This affects a sweeping subsection of retailers and small business owners - everything from framing stores to boutique dress shops are okay by the state, as long as they aren’t explicitly listed as a prohibited business.

COUNTIES CAN ADOPT A STRICTER DEFINITION OF ‘ESSENTIAL’ - AND TOWNS CAN OPT OUT

The governor’s state-level mandates are considered the “minimum required” restrictions to slow the spread of COVID-19, but each of North Carolina’s 100 counties has the authority to impose stricter measures as they see fit.

The result is a patchwork of definitions of “essential” that differ significantly across county lines - and, occasionally, within them.

In its “Stay Home, Stay Safe” order, Buncombe County overruled the section of EO121 that so broadly expands the definition of “essential.”

“Buncombe County determined that this clause could be leveraged in a way that undermines the effectiveness of the Stay Home Stay Safe Order,” Stacey Wood, spokesperson for the Buncombe Department of Health and Human Services, said.

That purpose, Wood explained, “is to slow the spread of COVID-19 by reducing, as much as possible, any non-essential travel, activity, or exposure to COVID-19.”

Buncombe County instead provides a ‘yes-list’ of categories of business that are allowed to operate, ranging from plumbers and laundromats to health care facilities. If it doesn’t appear on that list, it’s not allowed.

But neighboring McDowell County has hewn more closely to the governor’s orders - they’re following the state’s definition of “essential” businesses.

Ostensibly, a business owner with two locations across the county line would have to close the Buncombe County business, but could operate in McDowell.

The town of Weaverville in Buncombe County announced on May 1 a “withdrawal” from Buncombe County’s adapted Stay Home, Stay Safe order, which was declared April 30.

The sticking point was the definition of essential, Weaverville Mayor Al Root told the Citizen Times.

“If you’re in a small town like Weaverville, and you have like a mom and pop shop, it’s very possible that you can meet (the state’s social distancing) restrictions,” Root said.

“On Mainstreet Weaverville, it doesn’t make sense not to let them try,” he added.

Does Weaverville have the legal grounds to ‘opt-out’ of public health measures?

“For the county to exert authority within the various municipality limits, the municipality itself actually has to consent,” Root said.

That’s consistent with Mecklenberg County’s struggle to extend its stay-at-home order without the support of one town, Huntersville, as the Charlotte Observer has reported.

DEPARTMENT OF REVENUE DECIDES?

On March 31, the Citizen Times asked Cooper in a press conference whether each NC business was allowed to read the executive orders and interpret for themselves whether or not they were essential.

“The Department of Revenue makes the decision about whether businesses qualify (as essential) or not,” Cooper said. “People can file, or businesses can file, their request to be designated as such.”

But on April 22, Dr. Mandy Cohen, Secretary of the NC Department of Health and Human Services, said there was “no process or application” for businesses to be deemed essential and that “businesses that deem themselves essential” should follow all social distancing mandates and guidelines.

But the question of whether the buck stops with the Department of Revenue is a complicated one.

“While businesses are not required to seek approval of the NCDOR to operate, it is advisable to ensure they are aware of and required to comply with the social distancing requirements for minimum basic operations,” said Schorr Johnson, director of public affairs at the NCDOR, on April 22 via email.

Johnson acknowledged that a number of businesses and retailers were sent letters telling them they were allowed to operate “only if they satisfied the Social Distancing Requirements in Executive Order 121″ and Executive Order 131.

But for business owners like Tyson, that letter took them down a fruitless path.

“Even if the NCDOR has determined a business is not barred from operating by Executive Order No. 121, the business may still be required to cease operations if a more restrictive county or municipal order applies,” Johnson said.

Johnson’s warning is included in the letter itself - “It is your business’s responsibility to ensure that it is entitled to operate under any applicable local ordinance,” the second-to-last line says.

A letter of approval from the NCDOR isn’t a golden ticket - but that doesn’t mean businesses aren’t desperate to get them. Johnson said the DOR has received “over 6,000 requests” to review businesses’ eligibility to operate.

NCDOR can’t approve businesses specifically barred by other executive orders, like bars and on-premises dining at restaurants (Executive Order 118) or gyms and movie theaters (Order 120).

“Businesses excluded from the list of essential businesses in (Executive Order 121) who believe that they may be essential may direct requests to the NCDOR,” Johnson said.

BUSINESS OWNERS SUPRISED STATE ALLOWED THEM TO OPEN

John Horrocks, owner of BlackBird Frame & Art in North Asheville, said he was taken aback when he reread Executive Order 121 on April 30.

But the state order indicates there is no problem with his custom framing shop operating as long as the business can maintain social distancing “between and among its employees” and “between and among employees and customers except at the point of sale or purchase.”

Horrocks was an early advocate for small businesses since the pandemic began, highlighting frustrations that big box stores like Michaels were allowed to operate on the grounds that they sell some products needed by essential workers - paint for construction workers, for instance.

Horrocks said he hadn’t realized that it was the county order, not the state’s, that prevented his business from opening. On April 30, Buncombe County adopted a new Stay Home, Stay Safe declaration that officials said was more closely aligned with the state orders.

Public Health preparedness director Fletcher Tove said the order will enable Buncombe to “move forward in lockstep” with Cooper in response to the coronavirus pandemic.

But the new Stay Home, Stay Safe Order still strikes out Executive Order’s 121′s broader definition of “essential.”

“If we could be open, I would feel as though we had to in order to preserve and protect our share of the market, as I think any other business like us would have to,” Horrocks said. “There’s sufficient business out there, because I’ve got people calling me every day, multiple times a day.”

AN ANXIOUS ANNIVERSARY

After some back and forth with county officials, Tyson said, he’s been given permission to deliver to his clients.

“The (delivery) crews have to wear masks, have to wear booties, have to wear gloves,” he said. “We have totally revamped our operating procedures to fit with the guidelines we’ve gotten from the state and from the CDC.”

“This is the toughest single month that I’ve been through since I’ve been in this business,” Tyson said.

May 1 was Tyson Furniture’s 74th anniversary.

“We’re fortunate,” Tyson said. “A business with a long history and a long list of customers has a lot better chance of surviving this shutdown.”

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