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At least 671 LI companies received waivers to open as essential businesses

New York has issued at least 671 waivers to Long Island companies, granting them “essential business” status and allowing them to operate while most of the state’s economy has been shut down under Gov. Andrew M. Cuomo’s executive order aimed at combating the spread of the coronavirus Credit: Newsday / Yeong-ung Yang

ALBANY — State records show at least 671 waivers have been issued to Long Island businesses in March and April deeming them “essential” and allowing them to operate while most of the state’s economy has been shut down under Gov. Andrew M. Cuomo’s executive order to combat spread of the coronavirus.

The companies granted waivers varied widely, according to records obtained under the state Freedom of Information Law. They include everything from construction firms to job-placement services to vaping shops to pet groomers.

Waivers were sought by more than 23,000 individual companies statewide. Each time a group of lawyers at the Empire State Development Corp., the state economic development agency, determined a company was essential, the decision applied to all companies in the same line of business. All of the companies also had to adhere to social distancing requirements tailored to their operation to try to avoid spread of the virus, state officials said.

“The unprecedented and devastating impact of coronavirus required ESD to refocus priorities as part of a comprehensive approach to protecting the health and safety of New Yorkers,” said Matthew Gorton, ESD spokesman. “There was no playbook, so New York had to create one. ESD staff has worked around the clock to respond to the tens of thousands of queries from businesses seeking information on the state's guidelines, which were subject to change and adjusted as necessary based on the latest available data."

Some business owners said they found the process under which the exemptions were granted to be confusing, frustrating and opaque because there were no public statements as to why a waiver was granted or denied.

“Everybody is frustrated because it seems the chain stores have a leg up,” said Eric Alexander, founder of the LI Main Street Alliance, which represents downtowns undergoing revitalization. “Small businesses, independent retailers are in disfavor when it comes to how the regulations are interpreted."

Of the 671 waivers on Long Island, 128 companies are involved in construction, development, architecture and design, home repair, plumbing, home inspection, surveying, engineering and handyman work. Construction was among the broad categories allowed to remain open under Cuomo’s March 20 executive order to do essential work. But many construction and related firms still sought waivers to confirm that their specific commercial and residential projects met the order’s requirements that the work be essential to the public, or that a shutdown couldn’t be done safely.

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Another 46 companies do landscaping and lawn care, 54 are pet groomers, 18 are pool and pool maintenance companies, 19 are marinas and boating companies, five are smoking and vaping shops, and four are golf courses, according to records.

Others granted waivers include a bakery, a video game store, car washes, a private fitness studio, commercial movers, a chain of mattress stores, a yacht club and an independent filmmaker.

The state's definition of "essential" is open to interpretation. Cuomo's executive order defined an essential business as "providing essential services or functions."

ESD took more than a month to provide the public data to Newsday. The state didn’t supply the total number of requests for waivers or which companies were denied. Spokesmen for ESD and Cuomo’s executive chamber said fulfilling the entire request for the public records would require perhaps months more.

The Cuomo administration said the weeks of review by lawyers was required to make sure no “proprietary information” such as trade secrets, were released, although Newsday requested only the names and addresses of the companies.

The statewide shutdown began with Cuomo’s March 20 executive order: “Essential services have to continue to function,” Cuomo said in announcing his executive order. “Society has to function … but not luxury services.”

His order allowed a shortlist of essential business fields: health care, utilities and transit, farming and household paper products such as toilet paper, grocery stores, drugstores, convenience stores and gas stations, restaurants for takeout service only, hardware stores, mail, laundromats, building cleaners, child care services, warehousing, funeral homes and cemeteries, animal shelters, and manufacturers of food, medications and medical devices.

Waivers also could be granted under Cuomo’s order. The ESD lawyers spoke with companies seeking waivers to clarify the rules under which the company could open. 

Cuomo spokesman Jason Conwall said in an interview that the businesses granted waivers were often allowed to operate only on a limited basis as long as social distancing measures were followed.

For example, the state ruled that pet groomers are essential to operate only for the “health and wellness of the animal,” restricting them to “medically necessary services” such as trimming nails. Smoke and vaping stores can open only for curbside service to sell their products and lottery tickets, gun stores can only sell to law enforcement, and a gift shop was allowed to open only to make nondisposable protective masks.

Pool companies can provide maintenance and cleaning materials as a health precaution, but weren’t allowed to perform pool openings. Bakeries were allowed only to offer curbside pickups, a fitness center was allowed to provide online classes only, an independent filmmaker was allowed to record videos for real estate sales, and a yacht club was allowed to provide access to boats by owners.

The state officials noted, however, that they don’t enforce the restrictions to make sure the companies provided only the services permitted under the waivers. Cuomo has directed local governments and police to enforce the waivers and his executive order.

But the waiver decisions led to some confusion and reversals, business and state officials said.

“If Walmart can sell flowers on Mother’s Day, why can’t a florist?” asks Greg Biryla, state director of the National Federation of Independent Business.

For example, big box stores, including Home Depot, could always remain open under Cuomo’s order because it sells home repair products to homeowners and contractors performing essential services. But the store also sells gardening supplies, flowers and trees, while small florists were closed for weeks. Similarly, Walmart stores have been open because in addition to retail goods they also sell food.

“We have received an incredible amount of frustration in correspondences by business operators who see a Home Depot operating, but a local flooring company can’t open,” Biryla said.

The confusion was clear among some business operators on Long Island.

“It started out really challenging,” said Ken Pokalsky of the Business Council of New York State. “It was really unclear what waivers were done and it wasn’t known what waivers were granted, so the same waivers were sought over and over again … we thought greater transparency on the initial wavier procedure would have been helpful.”

Alexander of the LI Main Street Alliance said that when Cuomo issued his executive order “most people were resigned to the fact that they were seen as nonessential. They didn’t challenge it, but then they saw the chain stores operating. The frustration has built week after week. People don’t understand the methodology of the essential list.” 

State officials said decisions were based on discussions with the company representatives that sometimes showed a service was more important than officials had first thought and that the company could operate while social distancing.

“What seemed to be obvious turns out far more nuanced,” said a state official involved in the process. “We tell people things are changing and you may not be essential this week, but may next week … and vice versa.”

Changes popped up without announcement on the ESD website and through email blasts, and included this caveat: “Please note that ESD’s guidance is subject to change as the state adapts its response to combating COVID-19. Be advised that any previous designation or determination by ESD that a firm is an essential business that is inconsistent with the revised guidance is no longer valid.”

The experience of store owners that received waivers for their field varied.

Andy Chernoff of Coliseum Gun Traders in Uniondale said its exception was granted because they sell firearms and ammunition mostly to police.

Rashid Kahloan said he applied to offer delivery of tobacco and vaping products from his King Vape and Smoke Shop in Kings Park, and got the waiver immediately.

BeachFit Training in Oceanside gained approval quickly in March to hold its workout classes over the internet, said co-owner Christina Boccio, but none of their private customers are going into the studio.

Meanwhile, Christina Bisbee at The Chocolate Duck bakery in Farmingdale said the process was frustrating. She said she provided curbside service while awaiting approval from the state on its request to operate: “We applied twice,” she said, learning of the state’s decision from Newsday. “They never answered us.”

The New York Golf Association reflected confusion over the state’s direction in the association’s message to members on March 27, five days after the shutdown began: “At this moment it is impossible to substantiate any alleged guidance on the Executive Order and how it pertains to golf in New York.”

Golf was at first not considered essential, but after several requests by golf courses it was considered essential exercise at country clubs with restrictions such as prohibiting the use of golf carts. Still later, golf was opened up further.

In another case of perseverance, the New York Marine Trades Association based in Amityville was able to open marinas for pleasure boating after several requests.

Business are hoping for more transparency when the state starts to reopen in phases, with broad sections, categories and requirement, but there is some continuing concern.

“We have to get better at it,” said Biryla of the independent business group. “This could get worse because every two weeks  we are going to be adding new companies into the economy and those companies want nothing more than to do it safely, so they need the rules from the state to be as clear as possible.”

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