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The discrimination of ‘non-essential’

By M.D. Kittle

MADISON — When Gov. Tony Evers issued his lockdown orders at the outset of the COVID-19 outbreak, he shut down so-called “non-essential” businesses. Thousands of businesses that are quite essential to their owners and the people they serve had to close their doors. Some of those businesses would never reopen.

A bill moving through the Legislature aims to make sure what supporters see as discriminatory and destructive designations don’t hurt Wisconsin businesses in the next public emergency.

Assembly Bill 912 aims to ensure all businesses are treated equally during an emergency declaration by the government. It would also eliminate the economic hardship endured by small businesses ordered to close, while their big box competitors remained open for business.

Under the bill, no business may be declared essential or nonessential, and any action or regulation of a business relating to an emergency must be applied to all businesses uniformly without regard for the type of business or the product or service provided by the business.

“Small business owners here in Wisconsin are behind this bill because it’s a simple win: it would eliminate the essential and non-essential designations,” said Bill Smith, NFIB (National Federation of Independent Business) Wisconsin state director. “That means that state government can no longer chose ‘winners’ and ‘losers.’

The state mainly followed the U.S. Department of Homeland Security guidance on what constitutes an “essential” and “non-essential” business or operation. Hospitals, pharmacies, public safety, and supermarkets made the essential list. So did veterinary clinics, gas stations, banks and big-box retailers like Kohl’s and Home Depot.

A lot of small businesses, from restaurants and bars to salons and specialty retailers didn’t make the cut. They were ordered to close or dramatically reduce operations.

“One of the most challenging parts of COVID mandates here in Wisconsin have been the arbitrary designations by state government,” Smith said. “While big box businesses were allowed to stay open, some of our small business owners, who sold some of the same products, were mandated to close their doors.”

A recent NFIB survey of members across Wisconsin found 97 percent of small business owners indicated support for eliminating the essential and non-essential designations from emergency orders.

Governments have faced discrimination lawsuits in the wake of the designations. A gun retailer joined individual and nonprofit organizations in suing California government officials, alleging the decision there to categorize gun stores as nonessential was a violation of the constitutional right to bear arms. A federal appeals court last month found two counties violated the constitution by declaring gun shops as non-essential.

The Second Amendment “means nothing if the government can prohibit all persons from acquiring any firearm or ammunition,” Judge Lawrence VanDyke wrote for a three-judge panel of the 9th U.S. Circuit Court of Appeals.. “But that’s what happened in this case.”

“The cost of the government mandated lockdown of so-called non-essential businesses was devastating for small business employers and their employees, yet minimal impact on controlling the spread of the pandemic,” Smith said.

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