Bar Owners Across N.C. Challenge Shutdown, Seek Ruling Against Key Emergency Management Act Provision | Beaufort County Now | Bar owners from six counties across North Carolina are going to court to challenge the governor’s executive orders shutting down their businesses. | carolina journal, bar owners, shutdown, ruling, emergency management act provision, december 23, 2020

Coronavirus Disease 2019 (COVID-19)

Bar Owners Across N.C. Challenge Shutdown, Seek Ruling Against Key Emergency Management Act Provision

Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Bar owners from six counties across North Carolina are going to court to challenge the governor's executive orders shutting down their businesses. Their lawsuit seeks to have a key piece of the state Emergency Management Act declared unconstitutional.

    The suit filed in Carteret County Superior Court arrives the day after a similar complaint filed on behalf of a Greenville bar. Plaintiffs in the new suit own and operate bars in Guilford, Forsyth, New Hanover, Buncombe, and Wake counties, in addition to Carteret.

    "The Governor has been issuing his Executive Orders since last March with no checks or balances," said Chuck Kitchen, the Raleigh-based attorney representing more than a dozen individuals and businesses. "The Plaintiffs' argument is that the Governor cannot unilaterally make what has the effect of law without the procedural check of the Council of State. Otherwise, the Legislature should be passing laws relating to the pandemic."

    One piece of the 14-page complaint calls for a three-judge panel to determine that a portion of the state Emergency Management Act is unconstitutional. Gov. Roy Cooper has relied on that portion — officially General Statute § 166A-19.30(c) — to bypass the Council of State when exercising his emergency powers during the COVID-19 pandemic.

    That piece of the Emergency Management Act gives the governor authority to step in and take action normally delegated to local governments. Cooper can step in when he determines "that local control of the emergency is insufficient to assure adequate protection for lives and property."

    The lawsuit spells out a constitutional problem. "The Governor's actions are in his discretion and not accompanied by adequate guiding standards to govern the exercise of the delegated powers by the chief executive," according to the complaint. "Further, there are no procedural safeguards to control the Governor's actions in his use of Executive Orders pursuant to N.C. Gen. Stat. § 166A-19.30(c)."

    That provision thus "represents an abdication of the authority of the General Assembly to make laws and is in violation of the Separation of Powers Clause of the North Carolina Constitution."

    "This statute allows the Governor to exercise the power of cities and counties in issuing his executive orders, including the Executive Orders which have kept bars closed," Kitchen said in a news release. "Without this authority, all the Governor's Executive Orders would have to be approved by the Council of State."

    The council comprises the 10 statewide elected executive branch officials in North Carolina. Republicans now outnumber Cooper and his fellow Democrats 6-4 on the council. This means Cooper's COVID-19 executive orders would require some degree of bipartisan support.

    The suit also contends another section of the Emergency Management Act — N.C. Gen. Stat. § 166A-19.30(b)(2) — has been applied unconstitutionally against bar owners and operators.

    That section "provides that municipalities and counties, and in this case Defendant Cooper, have the authority to prohibit the operation of business establishments and therefore to prohibit individuals from earning a living," according to the complaint.

    "The General Assembly does not possess the authority to prohibit the right of individuals to earn a living," the lawsuit continues. "It therefore cannot give that right to municipalities and counties, and in this case to the Governor."

    The suit asks a court to declare that piece of the Emergency Management Act unconstitutional as applied to the plaintiffs and their bars. All executive orders keeping bars closed would be struck down.

    Cooper's executive orders have kept N.C. bars shut down since March 17.


Latest Op-Ed & Politics

Here's an explanation of why Mitch McConnell stabbed Donald Trump in the back
He thinks it's clearly unconstitutional to try a man already out of office.
We will offer this allotment of three with more to come; some old, most new, but all quite informative, and, moreover, necessary to understanding that in North Carolina, there is a wiser path to govern ourselves and our People.
Fake President war on history. Wonder who told him what to do
Last week, Rep. Liz Cheney (R-WY), who is the third-highest ranking House Republican, broke with her party last week when she was one of ten Republicans to vote with Democrats in impeaching President Donald Trump.


Collin Anderson of the Washington Free Beacon highlights the Biden climate team’s latest bizarre pronouncements.
On Saturday, December 12, 2020 at about 5:00 pm Beaufort County Deputies were called to check the welfare of a woman living at 1117 NC 171 Hwy N, Washington.
David Hogberg writes for the Washington Examiner about the new president’s plan to reverse recent health care reforms.
Democrat Joe Biden was sworn in as the 46th president of the United States Wednesday, just before 12 pm EST, taking the oath of office on the United States Capitol steps.
Republican strategist Karl Rove spoke out over the weekend to warn that Donald Trump will be convicted in the Senate by a bipartisan vote if he continues to claim that election fraud took place.


Today, Governor Roy Cooper and North Carolina Department of Health and Human Services (NCDHHS) Secretary Dr. Mandy Cohen visited a large-scale vaccine site at UNC-Chapel Hill’s Friday Conference Center to witness health care workers and North Carolinians over age 65 receive the COVID-19 vaccine.


Back to Top