Won: Executive Order restrictions on private bars removed; Emergency Management Act amended

Crystal and Rob Waldron have spent more than 18 years making Club 519 a popular fixture in the Greenville, North Carolina bar scene, especially among locals who like to stop in after a long day at work. 

Under the state’s COVID-related orders however, Club 519 has been shuttered since March. The Waldrons fear that if they don’t reopen soon, they’ll lose their pride and joy and their primary source of income. 

When the COVID-19 pandemic struck, North Carolina Governor Roy Cooper unilaterally declared a state of emergency that only he is authorized to end. The governor has since issued a hodgepodge of arbitrary directives, including an executive order that allows nearly every establishment that sells alcoholic beverages to remain open but that forces most private bars to remain closed. (In North Carolina, establishments that serve alcohol but not food are classified as “private bars.”) 

Right now, bars can only serve outdoors and only at 30 percent capacity. At the same time, bars in hotels and restaurants, as well as bottle shops, breweries, cideries, distilleries, meaderies, and wineries, are all allowed to operate at 50 percent capacity—indoors and outdoors. 

Like many bars in North Carolina, Club 519 has no outdoor space and thus cannot open at all, even if it maintains the same indoor health and safety protocols as similar establishments that have been permitted to reopen. And the governor’s disparate treatment of private bars and other businesses seems without any reason apart from the greater lobbying power of the other businesses. 

In his exercise of essentially one-man rule, the governor has not only assumed legislative power, he has also prevented the legislature from responding to the COVID crisis. Gov. Cooper has vetoed bills to change his emergency rules and rebuffed efforts to limit his emergency power by claiming that there’s no limit to the duration of the state of emergency. 

Although there is a role for the state to regulate for public health, government must act constitutionally. The legislature should be making the rules, and similar businesses should be treated similarly. 

Represented by PLF free of charge, the Waldrons are fighting back in state court, challenging the governor’s arbitrary treatment of bars as violating the Equal Protection, Separation of Powers, and Fruits of Their Labor clauses of the North Carolina Constitution, and the Due Process and Equal Protection clauses of the U.S. Constitution. 

What’s At Stake?

  • Although there is a role for the state to regulate for the sake of public health, government must act constitutionally. The legislature should be making the rules, and similar businesses should be treated similarly.

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