Photo Credit: Yonatan Sindel/Flash90
Supreme Court Justice Alex Stein.

Three High Court of justice judges on Tuesday sharply criticized the Health Ministry’s business closure regulations at a hearing of a petition filed by the chain Lighting Warehouses.

Justices Noam Solberg, George Kara and Alex Stein criticized the vague wording of the regulations that determine which businesses are defined as essential and thus authorized to stay open, and said that it leaves too much discretion to police officers in enforcing the regulations, and that the faulty regulations create unfair competition.

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The High Court issued an injunction against the Health Ministry ordering it to explain its directive to the Israel Police not to allow Lighting Warehouses branches to remain open during the coronavirus crisis.

Lighting Warehouses petitioned the High Court during the second wave’s closures against the enforcement policy of the Health Ministry and the police. According to the chain, police enforcement actions against it are illegal and create an unfair discrimination between the chain and its competitors, ACE, Home Center, and electricity wholesalers, against whom the ban is not being enforced.

According to the petition, while the police ordered Lighting Warehouses branches to close down, its competitors continue to operate unhindered, despite the fact that the main business of Lighting Warehouses is the sale of lighting products that are essential for home maintenance.

Lighting Warehouses store in Holon. / Courtesy of Lighting Warehouses

The chain claimed that “if, God forbid, the opening of the chain’s branches remains forbidden even though its operation is permitted in accordance with the regulations, the chain would sustain enormous damages, as would its employees, suppliers, and their families, during this difficult period for health and the economy.”

The chain claimed that on September 24, police officers raided several of its branches and ordered its representatives to close them down, because their remaining open to the general public was in violation of health regulations. The chain also alleged that police officers indicated that they were acting in accordance with the guidelines of the Health Ministry. The chain claimed that its activity should be derogated because it sells essential products for home maintenance in the field of lighting and provides lighting equipment to contractors and electricians in the construction industry. The chain added that despite its adherence to the guidelines, the police closed six of its branches unjustly.

The State argued that the petition should be rejected and that the opening of the chain’s branches was in contradiction of the regulations.

State Attorney Erin Safdie-Attila said the main target of the corona restrictions is “reducing gatherings to a minimum by permitting individuals to leave home only to stock up on essential products.”

She added: “The chain mentioned Ace – which has everything in terms of maintenance products, so it falls within the exception. It sells lamps, nails, plumbing supplies and other things that may be important.”

When asked who decides what the main business of a store is, Safdie-Attila answered that each business decides whether or not to remain open, and the police officers who arrive on the scene exercise their discretion, which is how the police decided that the business’s mainstay was not essential and fined it.

Justice George Kara said at Tuesday’s hearing: “We are talking about a regulation that should explain the main engagement of the business. Where is it written that a policeman is the one who decides? We are creating an infrastructure for unfair competition.”

Judge Alex Stein said: “Is it conceivable for a police officer to determine freedom of occupation and competition in the marketplace? It cannot be, it is a restriction of the freedom of occupation of some and the empowerment of other companies.”

Judge Stein also stressed that the regulations are vague and that they should instead indicate precisely what businesses should and should not remain open.

To this the State attorney replied: “It is impossible. We face a difficulty in defining what is an essential product. To reach a finite list or a test that will delimit the variety of products we need to define what an essential product is.”

In other words, the State itself admits that it has no real definition of essential products and that it relies on the discretion of the police, none of whom has had a higher education or any training in defining what the State Attorney’s Office itself is unable to define.

At the end of the hearing, a decision was made to issue an injunction ordering the Health Ministry to explain why its directive to the police should not be changed.

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David writes news at JewishPress.com.