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McClennan County

Is CBD oil “essential health care”?

These are the questions of our times.

The police went into Fatty’s Smoke Shop in Beverly Hills, a small city surrounded by Waco, last Wednesday about 10 a.m., owner Jesse Singh recalled. His business, they informed him, is not considered essential under McLennan County’s emergency order, issued the previous day as part of the government’s increasingly restrictive efforts to slow COVID-19, the viral disease racing across the country.

“They also told my customers they were illegally out of the house because this wasn’t an essential business,” he said.

Singh balked, noting the county’s emergency order permitted “health care operations” to remain open, and that his shop sold CBD oil, among other products, which many people use to treat a variety of ailments. “My parents use it for arthritis,” he said.

The officers left, but returned later that evening, writing Singh a ticket for “violation of the emergency plan” — a fine of up to a $1,000 per day. He remained closed Thursday, but the store was back and open for business on Friday and Saturday, with strict social distancing measures and an official letter of complaint from his lawyer to the county firmly in place.

On Sunday the police returned, this time threatening the clerk with a personal $1,000 fine, Singh said. The shop closed around 11 a.m.

Apart from apparently being one of the first punitive actions taken against a business for remaining open in violation of a county’s coronavirus emergency declaration, the dispute could foreshadow future legal battles as the business shut-down drags on.

It also highlights the challenge of enforcing a patchwork of emergency orders across the country and state when details of the directives can be open to interpretation.

“The assignment of essential vs. non-essential businesses seems arbitrary based on the current order in McLennan County,” Singh’s lawyer, Hunter Shurtlett, wrote in a March 27 letter to County Judge Scott Felton. “Currently, convenience stores as well as liquor stores are designated as essential businesses. Customers of Fatty’s rely on CBD products for severe health concerns and purchase the products for health care purposes.”

Turns out, asking the question was the key, because the city backed down and allowed Fatty’s to remain open.

In an email sent Tuesday afternoon, the City of Beverly Hills, a small municipality surrounded by Waco, told Fatty’s Smoke Shop it could reopen so long as its clerks followed social distancing best practices.

Beverly Hills police had issued Fatty’s a citation last week after officers disagreed with owner Jesse Singh’s argument that customers use CBD oil to treat various medical ailments so his shop qualifies as an essential health care business. Despite the ticket, which could bring a fine up to $1,000, Singh remained open, only to have police return and forcibly close the store two days later.

In response to a letter from Fatty’s lawyer, however, the city changed its mind. Referencing McLennan County Judge Scott Felton’s March 23 emergency order, City Secretary Angel Nevarez wrote, “After review of the Order that is in place Fatty’s may remain open, however, there will have to be a curbside service. Only workers should be in the store.”

[…]

The flipflop highlights the difficulty in reconciling competing economic and public safety interests in the country’s response to the novel coronavirus, as officials trying to limit social contact to slow its spread bump up against businesses desperate to stay afloat.

For sure. Other counties, with varying degrees of explicitness, have generally not designated shops that sell CBD oil to be essential. I’m not qualified to assess the argument one way or the other. I don’t know what kind of effect closing these shops might have on the people who use CBD oil. There’s a lot of gray area in these stay-at-home orders, and we’re all trying to figure out the best way to balance risk and necessity. The main thing I hope is that we get a better idea of what the best practices should be, so that the next time something like this happens – there’s going to be a next time, hopefully more later than sooner – we’re better equipped to deal with it. Until then, we’ll have to muddle through somehow.

Anti-gay Waco JP sues for the right to be an anti-gay JP

Ugh.

A Waco judge who received a public warning last month for refusing to officiate same-sex marriages filed a lawsuit against the state agency that issued the warning, claiming the governmental body violated state law by punishing her for actions taken in accordance with her faith.

The First Liberty Institute, a high-profile Plano-based religious liberty law firm closely aligned with the Texas Attorney General’s Office, will represent the judge, Dianne Hensley, in the lawsuit filed Tuesday in McLennan County District Court.

Shortly after the U.S. Supreme Court asserted the constitutional right for same-sex couples to marry in the landmark 2015 Obergefell decision, Hensley refused to officiate any weddings. But in August 2016, she decided to resume officiating weddings between men and women, and said she would “politely refer” same-sex couples who sought her services to others in the area.

“For providing a solution to meet a need in my community while remaining faithful to my religious beliefs, I received a ‘Public Warning.’ No one should be punished for that,” Hensley said in a statement.

Hensley, who claims the state violated the Texas Religious Freedom Restoration Act, is seeking a declaratory judgment from the court decreeing that any justice of the peace may refuse to officiate a same-sex wedding “if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.”

[…]

Ricardo Martinez, Equality Texas CEO, said in a statement that as a justice of the peace, Hensley took an oath “to serve all Texans.”

“These elected officials continue to waste taxpayer money in an obsession to discriminate against gay and transgender Texans. This is not what Texans want or expect from elected officials,” Martinez said. “Discrimination of any kind is unacceptable. Their actions are mean spirited, futile, a waste of taxpayer money and most importantly, it’s wrong.”

See here for the background. Look, if Judge Hensley had “politely referred” mixed-race couples to other JPs because her religious beliefs were that only people of the same race should get married, no one would take her seriously. If she were a clerk at the DMV who refused to process drivers license applications from women because her religious beliefs were that women should not drive, she’d be fired on the spot. As a public servant, she serves the whole public, not just the public she approves of. That means she can perform weddings for anyone who comes before her, she can perform no weddings as she had originally chosen, or she can find another line of work. It’s that simple.

This was filed in a state court, as the allegation is that the “public warning” violated a state law. I feel like this will eventually wind up as a federal case, especially if she wins. It’s an open question at this point whether the AG’s office will represent the defense, or the State Commission (which is authorized to defend itself) will do it. All things considered, I’d prefer the latter. This case is going to be a hot mess, so buckle up for it. The Waco Tribune has more.

Challenging Chet

Via Eye on Williamson, I see the national GOP is once again looking to try to beat Rep. Chet Edwards in CD17.

There’s little question Republicans are looking to target Rep. Chet Edwards (D-Texas), who could face yet another tough re-election in his solidly conservative Waco-based seat. The question is who his opponent will be.

Both experienced and inexperienced Republicans are preparing their Federal Election Commission forms in Texas’ 17th district, encouraged by a strong showing by poorly funded 2008 nominee Rob Curnock.

Curnock held Edwards to 53 percent of the vote, despite receiving almost no support from the national party. Curnock, a small-business owner from Waco, plans to run again and hopes this time he’ll receive more support from national and local party leaders.

I think the key here is to compare Edwards’ 2004 performance with his 2008 performance, since I believe the non-Presidential year will be more favorable to him as it was in 2006. Here’s a Google spreadsheet that compares Edwards’ performance in each of CD17’s counties to John Kerry in 2004 and to Barack Obama in 2008. What I did in each was compare Edwards’ performance to that of the Democratic presidential candidate, and then compared the ratio from 2004 to that of 2008.

I think the story of these two elections is in the three biggest counties: Brazos, Johnson, and McClennan. In 2004, Edwards barely eked out a plurality in Brazos, got clobbered in Johnson, and won big in McClennan. In 2008, Edwards won a solid majority in Brazos, improved noticeably in Johnson, and won a smaller majority in McClennan.

His improvement in Brazos, I believe, can be largely attributed to an overall improvement in Democratic performance there. John McCain got almost exactly as many votes as George Bush did, while Barack Obama added over 4000 votes to John Kerry’s tally; meanwhile, Curnock did almost as well as Arlene Wohlgemuth while Edwards increased his total by 5000 votes. While there were probably a few Wohlgemuth voters who switched to Edwards in 2008, for the most part there were just a lot more people voting Democratic.

By contrast, Edwards’ improvement in Johnson is all him. McCain gained 1800 votes over Bush, and Obama added 600 to Kerry’s total, leaving their percentage almost identical to 2004, while Curnock lost 1500 votes and Edwards added 4200. Clearly, Curnock was a weaker candidate than Wohlgemuth, who was also from Johnson County and surely benefited from being a hometown girl, but Edwards did more than just take advantage of that difference.

Finally, McClennan presents an interesting case. Edwards won it by 23,000 votes in 2004, and was in net negative territory everywhere else. In 2008, he would have won even if all of McClennan’s votes were thrown out, but he only carried McClennan by 16,000 votes, and that was with Obama getting 37% to Kerry’s 33%. Here, Curnock’s residency in Waco likely helped him. Similarly, a local issue having to do with water rights that Edwards tied around Wohlgemuth’s neck back in 2004 was not on the table this time around. Unlike Johnson County, not being Arlene Wohlgemuth, especially not being Arlene Wohlgemuth in 2004, worked to the GOP’s advantage.

Based on all this, I’d venture that Edwards will likely do fine in 2010, barring any national headwinds against the Dems. If the NRCC dream candidate of State Sen. Steve Ogden jumps in, that would make for a hell of a race, but Ogden is up for re-election himself in 2010, so he’d have to give up his Senate seat and his powerful spot as chair of the Finance Committee to do that. I don’t know that a chance to maybe be in the House minority is worth that, but we’ll see.