Coronavirus (COVID-19) Small Business and Tenant Assistance Programs

Overview

The economic shock from the coronavirus pandemic has been sudden and unprecedented. Within the span of just a couple weeks, many businesses and public gathering spaces were shut down statewide, consumer spending on non-emergency items plummeted, and initial unemployment filings shattered old records. The full effect of these impacts will not be known for some time, but it is clear they will be significant. Many businesses will be vulnerable to closure, many employees may lose their jobs and sources of income, and the state and local governments are likely to see significant reductions in many tax revenues.

The state Department of Commerce has launched an Economic Recovery Dashboard providing key county-level, state, and national economic data to help decision makers, staff members, and communities measure the impacts of the pandemic on the economy and support programs, including a recorded a 30-minute video demonstrating how to use the tool.

In addition, the Washington State Economic and Revenue Forecast Council produces quarterly Economic and Revenue Forecasts, with monthly updates released in the middle of each month. These reports forecast statewide economic activity as well as state general fund revenues.

For free information on weekly U.S. consumer spending and how it has changed in response to COVID-19, see the Facteus Insight Report on Consumer Spending and Transactions (FIRST). Facteus states that its goal is "to help businesses, governments, and economists have a current, accurate view of the COVID-19 data so that they can make informed and timely decisions." You can view current and previous weekly reports on the Facteus website, and you can also sign up for email updates using their "Contact" button.

The state and federal governments are stepping in to provide some assistance to businesses and residents, and some local agencies are also taking action to reduce the burden on local businesses, workers and residents within their communities.

Gift of Public Funds Issues

The Washington State Constitution prohibits gifts of public funds “except for the necessary support of the poor and infirm.” There is a related prohibition in the State Constitution on the lending of credit by public entities.

Based on our understanding of this provision, MRSC has historically advised that financial contributions by local government entities to private businesses, either in the form of a grant or a loan, are generally prohibited. We have also previously advised that there must be a proper public purpose or public benefit resulting from such expenditures beyond providing financial support to a local business. 

However, on March 17, 2020 the Washington Attorney General issued a memo to state and local governments clarifying that public funds may be spent “for the primary purpose of protecting and promoting public health which may have an incidental benefit on private citizens and entities.”

On April 6, 2020, the Attorney General's Office issued further guidance concluding that local governments may provide cash assistance to low-income individuals struggling due to COVID-19 consistent with gift of public funds restrictions. The memo also concludes that under the present circumstances, with sufficient safeguards in place, small business "loans or grants are likely permissible if a local government can establish a clear nexus between such programs and either protecting the local economy or promoting compliance with public health guidelines."

In particular, the April 6 memo states:

The context for local governments’ proposed programs of small business loans and grants here is not “to enhance the private sector’s profit at the taxpayer’s expense”—which is clearly impermissible under the state constitution—but to prevent small businesses from having to close permanently due to the hardship associated with government-mandated closure of their businesses.

[…]

A local government would need to provide a clear nexus between any proposed grants and loans to small businesses and public health and welfare to help explain to a reviewing court why these local efforts accomplish a fundamental government purpose. It seems reasonable to conclude that helping small businesses survive temporary closure will help reduce the economic hardship caused by this crisis and encourage small businesses to comply fully with public health guidelines, but including statements to that effect in authorizing legislation would be helpful. Because there is no case law directly on point, this conclusion is somewhat uncertain, but courts would likely recognize the unique circumstances here and the need for strong action.

[…]

For the courts to analyze these questions, it would be helpful if local governments identified the specific economic benefits that the public would receive from the grants or loans. Local governments would be wise to ask any small business seeking funds for evidence of public benefit. This could include information like the number of jobs created or saved, the amount of tax revenue created or maintained, whether the business would pay wages or benefits to workers during the government shutdown, whether temporary funding would avoid risks like bankruptcy or permanent closure, or any other relevant information to assess public benefit.

This provides more flexibility for local governments to assist local businesses. We recommend discussing any proposal related to financial assistance with your legal counsel.

Small Business/Nonprofit Grants and Loans

Many jurisdictions have established grant or loan programs for small businesses and nonprofits to help offset the financial impacts of COVID-19. Many of these programs were funded initially through the CARES Act (in 2020) and later the American Rescue Plan Act (ARPA) Local Fiscal Recovery Funds (LFRF) beginning in 2021. These programs should be designed to avoid gifting of public funds (see above) and to comply with federal requirements for the use of funds.

For more information on ARPA funding, see the following MRSC resources:

• American Rescue Plan Act (ARPA) – Overview of the Local Fiscal Recovery Fund (LFRF), including eligible uses of revenues, how local governments are spending funds, and reporting requirements
• Treasury Releases Final Rule on American Rescue Plan Fiscal Recovery Funds (January 24, 2022)
• Treasury Issues Guidance for Local Fiscal Recovery Funds (May 13, 2021)
• American Rescue Plan Provides More Relief to Local Governments (March 17, 2021)

Below are some examples of local government grant and loan programs.

Grant/Loan Programs

• Duvall Emergency COVID-19 Human Resources Grant Program (April 9, 2020) – Allocates up to $30,000 in emergency grant funding to 501C3 non-profit entities serving within City limits to provide services to community members in need who have been impacted by the coronavirus pandemic.
• Federal Way Resolution No. 20-785 (April 7, 2020) – Authorizing funds up to $300,000 for emergency social services. Provides for $88,500 in immediate funding to three local organizations operating food banks or shelters. Additional emergency funding will go to nonprofits providing food, housing, homeless and/or mental health services. Includes background memorandum presented to city council.
• Kirkland Small Business Relief Fund – Partnership between city, chamber of commerce, and Banner Bank and seeded with $250,000 from Google's philanthropic arm
• Lacey Resolution No. 1086 (March 26, 2020) – Establishing $1 million business support program in response to COVID-19 pandemic, modeled after Seattle and including small business grant program. Includes grant criteria and procedures, business flyer, and interlocal agreement with Thurston Economic Development Council to administer grant program.
• Pierce County Ordinance No. 2020-43 (initially adopted March 24, 2020; amended April 21, 2020) – Ordinance and subsequent amendments establishing COVID-19 small business loan program. Provides zero-interest loans of $1,000 per employee up to 20 employees; at least 50% of funds must be loaned to businesses in unincorporated areas. Loan must be repaid in full after 12 months.
• Richland CDBG Small Business Stabilization Loans (May 1-May 31, 2020) – Also see detailed program guidelines and application form. Applies to brick-and-mortar businesses with less than 20 FTEs that have suffered at least a 50% financial loss due to COVID-19. Recipients must hire or rehire at least one FTE, retain the position(s) for 12 months, and provide monthly reports; after 12 months the loan is forgiven as long as the criteria are met. Funded by Community Development Block Grant (CDBG) funds and federal CARES Act stimulus funding.
• Shoreline Emergency Community Response Grant Program (March 30, 2020) – $100,000 grant fund drawn from city's general fund to provide grants to 501 (c)(3) and/or faith-based organizations who provide direct emergency response support to Shoreline residents. Document includes background, program outline adopting resolution and grant application form.

Grant/Loan Agreements

• Clallam County ARPA Subrecipient Agreement (August 10, 2021) – Contract for economic development council to administer small business/nonprofit grants. Includes summary, contract, and Treasury guidance; see Attachments D and E at very end for scope of work and administrative costs
• Pasco ARPA Subrecipient Agreement (July 6, 2021) – Contract for chamber of commerce to develop and implement bilingual business support program; includes adopting resolution

Hazard Pay Ordinances

Some jurisdictions have adopted ordinances requiring certain private employers – particularly grocery stores – to provide premium pay, or hazard pay, for hourly workers who have been unable to work remotely during the pandemic. Seattle’s hazard pay ordinance has been challenged in federal court; a federal judge dismissed the lawsuit in March 2021, although the decision has been appealed.

The American Rescue Plan Act also provides funding that can be used for hazard pay for eligible local government essential workers, as well as for local government grants to eligible private employers to provide hazard pay to essential workers. For more information, see our blog post Treasury Issues Guidance for Local Fiscal Recovery Funds.

Below are examples of local hazard pay ordinances; typically these jurisdictions will re-visit the ordinance after a few months and/or include a sunset clause expiring when the local or state emergency declaration expires:

• Burien Ordinance No. 757 (February 8, 2021) – Requires grocery stores with 250+ employees worldwide to pay $5/hour in hazard pay; includes provisions for stores already providing hazard pay. Council may review after four months; expires when statewide emergency ends.
• Federal Way Ordinance Nos. 21-912 and 21-913 (May 4 and June 1, 2021) – Requires all grocery stores to pay $3/hour in hazard pay; small grocery businesses (definition amended in second ordinance) may apply for city’s Small Grocery Hazard Pay Grant program to defray costs. Ordinance will be reviewed after 90 days.
• King County Ordinance No. 19247 (March 9, 2021) – Requires grocery stores in unincorporated areas with 500+ global employees to pay $4/hour in hazard pay, with certain exemptions. Stores must post conspicuous notice. Council intends to review after 90 days; expires upon termination of county emergency declaration.
• Seattle Ordinance No. 126274 (January 25, 2021) – Requires grocery stores with 500+ global employees to pay $4/hour in hazard pay. Stores must post conspicuous notice; includes detailed section on penalties. Council intends to review after four months; expires upon termination of city emergency declaration.

Temporary Use Permits and Outdoor Dining/Retail

To help retail and dining businesses serve more customers while also complying with the state's public health requirements and phased re-opening, some jurisdictions are creating temporary processes such as allowing outdoor seating in parking areas, modifying enforcement of their sign codes to permit more temporary signs, or creating short-term free parking for customers to pick up their orders.

Below are a few examples. For additional considerations, see our blog post Creative Use of Street ROW During the COVID-19 Pandemic.

• Bellevue Short-Term Parking for Bellevue Restaurants (March 19, 2020) – Providing temporary three-minute parking zones for customers to pick up their orders.
• Seattle Temporary Changes to Parking Enforcement – Includes short-term free parking and free signs for restaurant pick-up, suspension of 72-hour parking rule, and other changes
• Sequim Emergency Order No. 2020-24 (June 9, 2020) – Temporarily modifying enforcement of its sign code to allow downtown businesses to better communicate their location and provide information on available services and how to get takeout and surbside orders.
• Spokane Restaurant and Retail Expansion Program – Program temporarily allowing restaurants and retail businesses to expand operating space onto designated sidewalks and rights-of-way.
• Tacoma Curbside Cafe and Marketplace Program – Allowing retail stores and restaurants to expand their seating areas into parking spaces; city is waiving application fees, street use fees, and cost of on-street parking.
• Woodland Resolution No. 722 (June 1, 2020) – Creating a streamlined process for COVID-19 temporary use permits allowing retail and dining to expand into on-site or adjacent parking areas and allowing temporary signs in certain areas of the right-of-way.

Business License and B&O Tax Deferrals

Some cities have extended the deadlines for renewing business licenses or temporarily deferred business and occupation (B&O) taxes for impacted businesses. Below are a few examples:

• Bellingham Executive Order 2020-01 (March 19, 2020) – Providing relief to individuals and businesses impacted by COVID-19 by deferring quarterly B&O tax payments, providing extended utility payments and waiving late fees, suspending water shutoffs, and waiving two months’ rent for small businesses/nonprofits leasing city facilities.
• Issaquah B&O Tax Deferral Proclamation (March 26, 2020) – Mayor’s emergency proclamation instructing  finance director to take administrative action to allow businesses with taxable gross receipts of $5 million or less during 2019 to defer their first quarter business and occupation (B&O) tax payments for three months until July 31.
• Mercer Island Ordinance No. 20C-05 (April 7, 2020) – Amending municipal code to allow finance director to administratively extend the business and occupation (B&O) tax filing deadline for quarterly filers (gross receipts of at least $250,000 per quarter) through December 31, 2020 if needed, depending on economic conditions.
• Seattle Executive Order No. 2020-03 (March 10, 2020) – Provides relief to workers and small businesses, including business and occupation (B&O) tax deferrals, local and federal loan assistance, allowing extended utility payments, and halting utility shutoffs.
• Toppenish Resolution No. 2020-08 (March 23, 2020) – Authorizing the state DOR Business Licensing Services to extend city business licenses with a March 31 deadline to May 31 and waive late fees if a business owner calls stating they are faced with undue hardship as a result of COVID-19.

Rent Deferrals for Local Government Tenants

​A local agency, as a landlord, may also be able to provide for deferred rent during an emergency if the specific facts warrant it. For example, if the facility in which the tenant’s business is located is closed due to the emergency, then suspending or deferring rent would be an appropriate measure. The broader question of whether rent relief may be provided should be deferred to a time when more is known about the overall impact of the emergency on the tenant’s business.

Below are examples of local agencies that have provided some form of rent deferrals or relief to their tenants.

• Bellingham Executive Order 2020-01 (March 19, 2020) – Providing relief to individuals and businesses impacted by COVID-19 by deferring quarterly B&O tax payments, providing extended utility payments and waiving late fees, suspending water shutoffs, and waiving two months’ rent for small businesses/nonprofits leasing city facilities.
• Port of Port Townsend COVID-19 Declaration of Emergency (March 18 & 25, 2020) – Emergency declaration by port district executive director, including commission resolution ratifying the declaration and authorizing rent deferrals up to 3 months for port tenants most directly impacted by COVID-19, provided that back rents must be repaid within 12 months.

Utility Collection Deferrals, Shutoffs, and Payment Plans

To mitigate the economic impacts of COVID-19 on local residents, a number of local government utility providers have adopted measures temporarily suspending utility shutoffs, waiving late fees and interest, and/or authorizing the use of deferred payment plans. 

Governor Inslee also implemented a statewide prohibition on certain utility shutoffs and late fees (see Proclamation 20-23.2 et seq.), but this prohibition expired September 30, 2021. The state Department of Commerce has assembled resources for utility customers behind on their payments.

For water-sewer districts considering rate forgiveness, RCW 57.08.014 requires the district to notify all ratepayers of the special rates and any associated cost shifts.

Below are a few examples of such approaches:

• Bellingham Executive Order 2020-01 (March 19, 2020) – Providing relief to individuals and businesses impacted by COVID-19 by deferring quarterly B&O tax payments, providing extended utility payments and waiving late fees, suspending water shutoffs, and waiving two months’ rent for small businesses/nonprofits leasing city facilities.
• Covington Water District Resolution No. 4409 (March 24, 2020) – Emergency declaration due to COVID-19; also temporarily suspends locking of meters, filing of liens, and certain fees until May 31, 2020.
• Duvall Public Health Emergency and/or Pandemic Utility Billing Policy (2020) – Authorizes city to suspend utility late fees and postpone water disconnections during pandemics or other declared public health emergencies. Includes notification, reporting, and post-emergency procedures.
• Kirkland Ordinance No. O-4722 (March 31, 2020) – Authorizes finance director to temporarily defer and suspend collection of city utility charges and utility taxes. Expires 30 days after Governor's rescission of order closing all non-essential businesses.
• Lakewood Water District COVID-19 Customer Bill Assistance Plan (April 10, 2020) – Two-part assistance plan for customers impacted by the COVID-19 pandemic, including deferred payment plans and financial support program. Includes adopting resolution, application forms, and clear explanation of programs.
• Milton Emergency Policy and Procedure for Collection and Enforcement of Utility Bills (April 10, 2020) – Allows for the waiving of water, electric and storm drainage utility past due penalties and a postponement of utility shutoffs during a Declaration of Emergency related to a pandemic illness or other public health emergency.
• Ocean Shores Executive Orders 01-2020 and 02-2020 (March 17 and March 20, 2020) – Directing utility department to temporarily suspend late fees, halt utility shutoffs, and reestablish utility service to customers whose service had previously been shut off provided that they establish payment plans.
• Sammamish Plateau Water and Sewer District COVID-19 Utility Billing Procedures (April 6, 2020) – Temporarily discontinuing water shutoffs/lock-offs related for delinquent accounts, waiving late fees and interest, and reestablishing service to locked-off accounts needing access to water; provisions may not exceed 60 days after district rescinds its emergency declaration. 
• Seattle:
  • Executive Order No. 2020-03 (March 10, 2020) – Provides relief to workers and small businesses, including business and occupation (B&O) tax deferrals, local and federal loan assistance, allowing extended utility payments, and halting utility shutoffs.
  • Council Bill 119758 – Draft bill (March 23, 2020) to temporarily waive interest/late fees on delinquent utility bill balances to help mitigate the economic impacts of the coronavirus (COVID-19) pandemic on businesses and workers; includes bill summary and fiscal analysis.
• Sequim COVID-19 Utility Relief Program – Temporary program for residents and small businesses of 50 or fewer employees who have been impacted by the COVID-19 outbreak to apply for water and/or sewer utility rate reductions; includes application form.
• Toppenish Resolution Nos. 2020-09 to 2020-11 (March 23, 2020) – Three separate resolutions (1) temporarily suspending utility shutoffs, (2) temporarily suspending utility late fees, and (3) authorizing the city manager to establish payment plans for customers economically impacted by COVID-19
• Woodinville Water District Resolution No. 3959 (March 17, 2020) – Emergency declaration for COVID-19; includes suspension of liens and water service termination

Eviction Moratoriums and Tenant Protections

On March 18, 2020, Governor Inslee imposed a 30-day statewide moratorium on residential evictions for non-payment of rent (Proclamation 20-19) in an attempt to reduce the immediate economic burden to local residents. On April 16, 2020, the governor extended and expanded these tenant protections, including a prohibition on increasing or threatening to increase rents for residential properties and for commercial tenants who have been negatively impacted by COVID-19.

On June 29, 2021, the governor issued Proclamation 21-09, intended to bridge the operational gap between the eviction moratorium (Proclamation 20-19, et seq., which expired at 11:59 PM on June 30, 2021), and the protections and programs subsequently enacted by the 2021 state legislature in E2SSB 5160. These protections were extended through October 31, 2021 by Proclamation 21-09.1.

A number of local jurisdictions have imposed their own local eviction moratoriums; some of these examples are broader than the governor's order, including some that prohibit commercial evictions or apply to all residential evictions except those related to an imminent threat to health and safety.

Jurisdictions considering local eviction moratoriums or similar measures should consult with their legal counsel. The procedures for residential evictions are governed by state law and are addressed through the judicial processes in county superior court. While the policy reasons for such an order are understandable, it is not clear, even in an emergency, whether a local government can adopt a measure that would prohibit the use of a judicial process that is otherwise available under state law. Landlords may argue that such eviction orders are preempted by the Washington Residential Landlord Tenant Act (chapter 59.18 RCW).

However, for those jurisdictions that are considering such an approach, below are a few examples. In addition, the Washington State Supreme Court has authorized county superior courts to develop and implement an eviction resolution program (Order No. 25700-B-639). Landlords and tenants should contact their local courts to see if these programs can help resolve eviction issues.

2021 Eviction Moratoriums

• Kenmore:
  • Public Health Emergency Rule 20-03.6 (June 15, 2021) – City manager’s emergency proclamation extending the COVID-19 residential eviction moratorium through September 30, 2021
  • Ordinance No. 21-0525 (June 14, 2021) – Ratifying ordinance and providing for rental assistance; landlords must certify good faith efforts to obtain rental assistance before pursuing collection (includes certification form)
• Kirkland Ordinance No. O-4759 (June 15, 2021) – Temporarily extending the COVID-19 residential eviction moratorium through September 30, 2021, in the event the governor’s statewide eviction moratorium is not extended beyond June 30, 2021, and providing for tenant assistance.

2020 Residential Eviction Moratoriums

• Auburn Emergency Proclamation 2020-03 (March 18, 2020) – Issued after governor's statewide moratorium; waives all residential tenant late fees and charges for 30 days and expresses support for the governor’s order.
• Edmonds Resolution No. 4179 (March 24, 2020) – Council-ordered 60-day moratorium on residential evictions for non-payment of rent.
• Everett Moratorium on Residential Evictions (March 17, 2020) – Issued prior to governor's order; prohibits residential evictions for non-payment of rent for 30 days and suspends late fees.
• Kenmore Emergency Moratorium on Residential Evictions (March 16, 2020) – Issued prior to governor's order; prohibits all residential evictions except those for protection of life and safety for approximately 6 weeks because "residential evictions would dramatically undermine the containment and mitigation efforts needed to slow the transmission of COVID-19." Also suspends late fees and allows courts to grant continuances for pending evictions.
• Seattle Resolution No. 31938 (March 16, 2020) – Modifying mayor’s initial executive order; prohibits all residential evictions except for those constituting an imminent threat to health or safety, requests county sheriff to stop executing eviction orders, and extends moratorium to 60 days. Also see Seattle's FAQs for landlords and tenants

2020 Commercial/Nonprofit Eviction Moratoriums

• Auburn Emergency Proclamation 2020-04 (March 20, 2020) – 30-day moratorium on commercial evictions and late fees, provided that the tenant provides notice one week before payment is due that the tenant is unable to pay due to circumstances related to the coronavirus pandemic and provides supporting documentation.
• Edmonds Resolution No. 4178 (March 24, 2020) – Council-ordered 60-day moratorium on eviction of small businesses and nonprofit tenants for non-payment of rent or due to the expiration of the lease's term.
• Kenmore Resolution 20-338 (April 13, 2020) – City manager emergency proclamation and city council ratification for a temporary moratorium on small businesses and nonprofit tenant evictions due to non-payment of rent.
• Kirkland Resolution No. R-5414 (March 31, 2020) – Ratifies city manager's directive placing a moratorium on small business and nonprofit tenant evictions for non-payment of rent or due to the expiration of a lease's term until termination of city's February 29 emergency proclamation or 60 days from effective date of this directive, whichever comes first.

Other Local Economic Assistance Programs

A number of local governments are also exploring other ways to provide financial relief to local residents and businesses, including (but not limited to) establishing temporary short-term street parking for restaurant takeout, providing webpages and information packets for local businesses, and providing per diem to employees to buy food and beverages from local restaurants.

Below are selected examples:

• Bellingham Executive Order 2020-02 (March 20, 2020) – Authorizing the emergency use of public facilities to provide temporary shelter to people experiencing homelessness and other services needed to respond to the COVID-19 pandemic.
• Kirkland COVID-19 Resource Packet for Kirkland Business (2020) – Resource packet from Kirkland City Manager’s Office with information, resources and strategies for local businesses. Includes a letter of outreach from the city council to local business owners. Also includes list of contacts for SBA emergency loans and State Unemployment Assistance.
• Issaquah:
  • ​Rental Assistance – City allocated $100,000 in emergency funding for rental assistance to those affected by COVID-19 outbreak
  • COVID-19 Relief Meal Allowance Plan (March 2020) – Plan to support City employees and local businesses during the COVID-19 emergency by providing City employees who must be physically present at the worksite with a $25 per day meal allowance to be spent purchasing food and non-alcoholic beverages from local businesses.

Federal and State Small Business Assistance Programs

In addition to local economic assistance programs, local governments can also direct their businesses to the following state and federal resources:

• ​U.S. Small Business Administration: Coronavirus (COVID-19): Small Business Guidance & Loan Resources
• U.S. Small Business Administration: Economic Injury Disaster Loans – The list of eligible counties has been expanded to include the entire state
• Washington Department of Commerce: COVID-19 Business Resources for Washington State
• StartUp Washington: Working Washington Small Business Emergency Grants – State program providing grants of up to $10,000 to small businesses affected by COVID-19
  • Crisis Planning Tools and Resources