This article was updated on November 9, 2020 at 11:33 a.m. to correct a typo and add a downloadable copy of the order upholding Order No. 13, signed by Judge Moody.
On October 29, 2020, County Judge Ricardo Samaniego issued Order No. 13, ordering the shut down of non-essential businesses in El Paso to control the growing threat of the Covid-19 virus. The order, effective at midnight on October 29, 2020 shuts down non-essential businesses in El Paso. It also orders El Pasoans to stay-at-home. The stay-at-home order offers many exemptions that effectively does not limit the ability of El Paso residents to leave their homes. The brunt of the order is targeted at small-to-medium sized businesses, mainly in the personal and entertainment services sector. It targets the poor of El Paso.
The types of businesses targeted by the closure order and the expiration of the order proves that the order was nothing more than political gamesmanship, at the expense of the poor.
Last week, the El Paso County Health Department issued a report showing a significant increase of 3,100 infections in one day. The number was so high that it scared many El Pasoans into staying home. Soon after, the health department issued a correction clarifying that the 3,100 number had been a double-count. Some in the community have argued that the high number was issued to scare the El Paso population into submitting to the Order. There is no proof that this was the case.
Although the Order orders everyone to stay home unless performing essential services it is the essential services exception that makes the order moot. Under the Order, anyone can leave their homes to shop for groceries, pickup medicines or go to work at “essential services” companies. Under the order people can be out in public, even at parks and open spaces, while engaging in an “outdoor activity”.
Although the county parks are ordered to be closed, individuals can visit “open parks,” if they like.
In essence, if anyone says they are out buying groceries, on their way to “care for a family member or pet in another household or to care for a friend, child, the elderly, sick or dying,” they are exempt from the stay-at-home order. Also, participating in an “outdoor activity” or going to work at an essential company they are also not subject to the stay-at-home order.
The County order also allows for religious services.
What readers should note is that in addition to the few limits imposed on residents to stay-at-home, the Order gives almost any business, with few exceptions, in El Paso the ability to remain open.
For example, the Walmarts can remain open. Almost all retail establishments selling groceries are allowed to be open. Service companies in almost all types of business services can remain open. The news media can work. Accountants, lawyers and the oil refinery can continue to work. Banks and shops selling computer equipment and office supplies can work.
Even restaurants can remain open if they offer take-home orders.
Anyone working for these types of businesses can go to work.
The way the order is written, it easier to detail who must close then who can remain open. Therein lies part of the problem and why the order is political subterfuge.
Who Was Targeted
Barbers, hair & nail salons, gyms, tattoo parlors, bars and other small labor-intensive businesses were ordered closed. In essence, the smaller companies without a business chamber of commerce lobbying for them and who likely depend on their daily income to make ends meet must remain closed.
The Order, on the surface, seems to be about protecting the community from the further spread of the virus. On the surface it looks like a necessary cost of keeping the community safe.
On the surface it looks like it is about protecting the community.
The Enforcement Lie
From the moment the Order was issued the problem of enforcement was apparent to politically savvy individuals, although the community, in general remains largely unaware of the political gamesmanship with the Order.
The central problem is that the Order was only being enforced by the Sheriff’s office.
Dee Margo and several businesses filed a lawsuit immediately after the Order was issued. The City of El Paso, until recently, refused to enforce the Order.
So, while the poor members of the County were being forced to abide by the Order in fear of being fined, those in the City largely ignored the Order.
City businesses and those working in the city went about their daily work routines while the poor members of the county wondered if they should risk the fine.
Ricardo Samaniego told those listening to the announcement of the Order that it was going to be challenged via litigation. The County and Samaniego knew from the moment that the Order was issued that it was going to be challenged and that it was largely unenforceable.
The Order made for good community dialog, but it did little to curb the rise of Covid-19 infections.
What it did do was hurt struggling small businesses further.
The Order is set to expire on Wednesday, November 11, 2020.
Judge William Moody ruled on Friday that Samaniego’s Order was valid. The El Paso Police Department later announced that the Order would be enforced in the city limits because of the ruling.
In other words, while the poor businesses in the county were under the threat of fines for trying to work for almost two weeks, the small businesses in El Paso are only facing closure for five days, at most.
It is the microbusinesses that are most vulnerable to the economic crisis.
The box stores like Walmart were never threatened. The professional services like the accounting firms, the law firms and several other “essential businesses” were not threatened.
Even the bars, barbers, nail salons and tattoo shops in the city were not threatened.
Only the poor in the county suffered because of the Order.
Therein lies the subterfuge of the stay-at-home Order issued by Ricardo Samaniego and challenged by Dee Margo. Neither are hurt by the Order. Those who support them publicly were not hurt either.
The only people who were hurt are the people in the county who were forced to abide by an Order targeting the poor of El Paso, all for political gamesmanship at their expense.