By: Robert Finkle, Partner
Due to the global outbreak of COVID-19, millions of people and businesses throughout the United States are now under Shelter In Place or SIP orders. SIP orders will vary greatly from jurisdiction to jurisdiction however, the guiding principles remain the same. Generally, SIP orders will require people to shelter in their residences and businesses to shut down. Exceptions or exemptions are made for essential activities and also for businesses that provide essential services begging the question: Are cannabis businesses essential?
On Monday, March 16, 2020, more than 6 counties in the San Francisco Bay Area, representing a population exceeding 7 million people, issued SIP orders to take effect at 12:01 am on March 17 and running through April 7, 2020. These orders excepted “Essential Businesses” from shuttering their doors. As defined in the orders, Essential Businesses included health care operations, companies working on essential infrastructure, businesses providing goods and services to needy individuals and businesses that ship or deliver goods or services to residences, among others.
Many Cities and Counties throughout the Bay immediately addressed cannabis businesses, deciding at the outset that their services, particularly to medical cannabis patients, qualified as essential. The authorities in San Francisco, on the other hand, initially decided cannabis businesses were not essential.
Business owners and advocates, including the author of this article, responded strongly to San Francisco’s decision laying out arguments that its cannabis businesses were Essential Businesses due to their long history of providing medical cannabis to those with serious medical conditions. Moreover, cannabis businesses were uniquely prepared to remain open while also supporting public health goals given many have home-delivery services in place and all cannabis businesses have the ability to leverage security personnel and stringent operating procedures to support social distancing requirements that were required to put in place under the SIP. Finally, operators and advocates argued that upon balance, considering sales of untested black-market cannabis goods were likely to skyrocket if licensed businesses were closed, keeping cannabis businesses open would result in a net positive public health result.
Within 24 hours San Francisco reversed its decision on ordering its local cannabis businesses to close during the SIP, and instead allowed the businesses to remain open under the following strict operating conditions:
Enforce Social Distancing restrictions including: ensuring customers and employees maintain a 6 foot distance whenever possible, washing hands with soap and water for at least 20 seconds as frequently as possible, covering coughs or sneezes in the sleeve or elbow, regularly disinfecting high-touch surface areas, and refraining from physical contact. Consumption lounges must be closed with customers being encouraged to choose home-delivery when available and strict take-away service when not. Use separate entry and exit points where possible. If only one entry, the line should be more than 6 foot from the front door to prevent contact upon entry and exit of customers. Staff presenting signs of illness must be sent home immediately and remain home until symptom free with a doctor’s note. Staff checking identification for age verification must sanitize/wash hands after handling each ID. Staff handling payments must sanitize/wash hands after every transaction. No un-medicated samples may be provided during SIP. No smelling or handling of samples or unpurchased goods is permitted. All products and displays in customer area must be roped off or removed.
The strict operating conditions imposed by San Francisco illustrate steps cannabis businesses throughout the United States can take to best serve their customers’ needs while minimizing the likelihood of transmission of COVID-19. Greenspoon Marder is actively consulting with cannabis businesses across the nation for assistance dealing with operational restrictions put in place by regulatory authorities as well as development of best practices in light of the COVID-19 outbreak.