This post appears here courtesy of the Carolina Journal
. The author of this post is Mitch Kokai
Photo: GoFundMe page for Club 519
The COVID-19 pandemic has disrupted all of our lives. But few in North Carolina can argue that they've taken as big a hit as owners and operators of private bars.
A court filing
this month makes clear that these businesses have faced special damage at the hands of an unsympathetic governor.
The filing in Waldron v. Cooper tells the clear story of more than 10 months of discrimination against one type of business.
"And while Governor [Roy] Cooper has called this a 'dimmer switch' approach, in reality, it threatens to turn the lights off on many private bars for good,"
according to the Jan. 15 document authored by attorney Jessica Thompson
Crystal Waldron co-owns Club 519, a private bar operating in Greenville for 18 years. Like other bar owners, Waldron shut her doors last March, soon after Cooper declared a state of emergency to deal with the coronavirus pandemic.
Ten months later, Club 519 remains closed. That's despite the fact that many other businesses that serve alcohol — including bars — have won government permission to reopen.
Just before Christmas, Waldron went to court. With free help from Thompson and the Pacific Legal Foundation, Waldron filed a lawsuit
to assert her right to join other alcohol-serving businesses in reopening and operating legally.
The Jan. 15 filing explains why executive orders keeping Club 519 closed amount to "discriminatory action." The governor's orders deprive Waldron and her business "of their fundamental right [to] enjoy the fruits of their labor and their constitutional right to equal protection."
The document also accuses Cooper of violating government's separation-of-powers principle. He has not allowed the General Assembly to exercise its constitutionally prescribed role: setting the laws governing which businesses can remain open during the pandemic.
The discrimination started early. Shortly after Cooper shut down bars and restaurants across the state last March, he divided them into "essential" and "nonessential" businesses. Essential restaurants were allowed to resume some operations. Bars remain closed.
By May restaurants were allowed to offer restricted on-premises dining. The governor and state Alcoholic Beverage Control Commission determined that "bars located inside of restaurants, eating establishments, wineries, distilleries, breweries, taprooms, brewpubs, cideries, meaderies, private clubs, bottle shops, or wine shops were all permitted to open at 50% capacity, both indoors and outdoors."
Private bars excluded from that list? Still closed.
Cooper vetoed bills in May and June that would have allowed private bars to reopen under restrictions set by the General Assembly. (The first bill had secured a 42-5 bipartisan vote in the state Senate before the governor signaled his displeasure.)
By September, more than six months after forcing private bars to close their doors, the governor allowed some to offer limited outdoor service. But "a private bar would need a patio the size of an NCAA basketball court ... to serve about 30 patrons,"
according to Thompson's case filing. For Club 519 and many other bars, the strict limits "mean staying closed entirely."
"Private bars are perfectly capable of opening safely under the same guidelines that apply to every other class of alcohol-serving establishments, as well as implementing additional measures to mitigate any supposed concerns unique to private bars,"
according to Thompson. "And yet the Governor continues to forbid them from operating indoors (as myriad other establishments are permitted to do) based on the unsupported assumption that private bars and their patrons will flout the rules."
But there's no "concrete evidence" to support the governor's assumption. "The only possible explanation for the governor's discriminatory Orders is private bars' disfavored economic status."
Disfavored economic status? To support that claim, Thompson points to Cooper's reliance on testimony from a tourism and marketing staffer from the Economic Development Partnership of North Carolina. The marketer noted the state's investment of "significant resources" and "incentives" to boost breweries and wineries. Employees of those businesses contribute six times as much money to North Carolina's gross domestic product as a typical private bar employee, according to the marketer's calculations.
In other words, the governor and his advisers "consider these entities more valuable to the economy than they consider the owners and employees of private bars,"
in Thompson's words. This amounts to "naked favoritism and discrimination based on economic status."
"Governor Cooper's unequal treatment of private bars does not speak to any legitimate public health concern, but rather the relative lobbying strength" of other businesses that sell alcohol, according to Thompson's legal argument.
Courts have deferred to Cooper's judgment about the pandemic in most cases. But the governor should not expect unlimited, perpetual acceptance of his dictates. "[W]hatever deference the Governor was entitled to in June, no deference should be afforded to the Governor's one-man rule nine months into the pandemic, especially when it contradicts legislation duly passed by the General Assembly,"
"The Governor alone has decided what businesses may operate and under what conditions — literally micromanaging every aspect of the North Carolina economy."
With estimated losses of $38,000 to $62,000 a month, Club 519 cannot remain idle much longer. "Plaintiffs are at the end of their financial rope,"
The governor's actions have produced one more significant negative consequence. He has "besmirched the reputation" of bar owners who've kept their doors locked since March.
"Cooper's continued closure of private bars, while other bars throughout the State remain open, promotes an unwarranted cloud of uncertainty as to the ability of these businesses to adapt to COVID-19 and protect their customers,"
Thompson argues. "The doubt raised by Governor Cooper's discriminatory Executive Orders re[d]ounds to the benefit of Plaintiffs' direct competitors."
Despite the concerted attack on their business, Waldron and Club 519 aren't asking a court to punish Cooper. They simply seek a ruling that would help them escape the governor's arbitrary punishment. They want to reopen their doors and restore their livelihoods.
Mitch Kokai is senior political analyst for the John Locke Foundation.