News

Council of State members question Cooper's restaurant shutdown order

By Kari Travis, Carolina Journal, Published: March 19, 2020

RALEIGH — On St. Patrick’s Day, Cary’s Carolina Ale House — garishly decorated with Irish food and drink ads — wasn’t teeming with its usual swarm of thirsty, hungry customers.

Instead, at 7:30 p.m., the rough-hewn doors creaked open to an empty dining room. Empty bar. Empty waiting area. The TVs were black. The music silenced.

“You ordered the buffalo wings?” asked the manager, one of only three workers staffing the kitchen for takeout orders. Three bags of food boxes were on the bar, awaiting pickup. “We were open like normal earlier,” he said, shrugging. “We had customers like usual.”

Not anymore.

Tuesday, Gov. Roy Cooper ordered that restaurants and private clubs close at 5 p.m. to stem the spread of coronavirus. Only carry-out and delivery orders could continue, Cooper said.

The exception was made to sustain the state’s hospitality industry, which is laying off or suspending work for potentially thousands of waiters, bartenders, and other workers who depend on dine-in customers for income. North Carolina’s state of emergency, declared by Cooper on March 10, allows the governor to make such orders under specific statutes. The process is often confusing, as shown by an executive scuffle Tuesday over who did, or didn’t, approve Cooper’s dining shutdown.

What’s not confusing? The effects this will have on industry employees and consumers alike.

The mass closure of so many restaurants is unprecedented, said Katherine Goldfaden, a spokeswoman for LM Restaurants, the company that owns the Carolina Ale House sports bar chain and several other popular restaurants across the Southeast. No one could ever be fully prepared for such a crisis in the hospitality industry, she said.

“We had some early inklings Monday,” Goldfaden told Carolina Journal. “Nothing solid, nothing that you could really plan on. It was more of, ‘We think something’s coming.”

Around 10 a.m. Tuesday, LM Restaurants heard news of Cooper’s impending announcement — at the same time as the public.

The restaurant group supports Cooper’s decision, Goldfaden said. The health of the public is at stake, she said. But harsh times are ahead.

“No question: This is a devastating blow,” she told CJ. “If we don’t open our doors, no one is making money — specifically the frontline teams. [Our] servers [lack] the ability to make a living.”

As restaurateurs and club owners work to mitigate consequences through public and private efforts, some members of the N.C. Council of State, the 10 statewide elected executive branch officials in North Carolina, are concerned Cooper’s action was poorly timed — and fumbled policy.

N.C. Treasurer Dale Folwell and N.C. Insurance Commissioner Mike Causey said they got an email from Will Polk, assistant general counsel at the N.C. Department of Public Safety, between roughly 12:40 p.m. and 12:45 p.m. Tuesday. The email, later posted on Lt. Gov. Dan Forest’s Twitter, was marked “high priority” and was sent to all COS members.

It was a request for concurrence with Cooper’s plan to shut down dining rooms at restaurants and private clubs by 5 p.m. Cooper noticed his plan publicly roughly two hours earlier. He announced the executive order during a 2 p.m. news conference.

Members of the COS were given 30 minutes to respond.

That wasn’t enough time, Folwell told CJ. He wasn’t even in the office to see the email. A staffer had to track him down in a nearby building.

“This is not a snit about process — it has a lot to do with policy,” Folwell said.

After Cooper’s Tuesday announcement, Forest published a news release stating the governor overstepped his legal grounds.

“After the press release, and shortly before a scheduled press conference, I, along with other Council of State members, was asked to concur with the Governor’s decision with no discussion,” Forest wrote in the release. “The Governor held his press conference and made the announcement even after a majority of the Council of State voted not to concur with the Governor. Thus, he does not have the authority to issue this part of his executive order.”

Cooper violated a general statute by failing to get the concurrence of the COS, Forest said. A majority of the members voted against the part of the order closing dining areas in restaurants and private clubs, CJ learned Tuesday. A record of the votes hasn’t been made public.

By law, the governor has every right to close bars and restaurants in an emergency, but only with the concurrence of the COS, said Jon Guze, director of legal studies at the John Locke Foundation.

“While I understand that all actions in a time of crisis are very difficult decisions and have many consequences, some decisions are so serious they require, by law, discussion with, and approval of, other state leaders,” Forest said.

CJ reached out to Cooper, and to other members of the COS. Folwell and Causey responded by press time.

The governor’s order, which encompassed both the restaurant shutdown and unemployment benefits, should’ve been split into two discussions, Folwell said.

COS members who voted against closing restaurants weren’t disregarding public health needs, he said. They were concerned about food supply chains and about the employees who would be jobless in the face of Cooper’s announcement.

“Here you are affecting the lives of hundreds of thousands of workers across North Carolina,” Folwell said, “and the secretary of labor has not been consulted here. You are possibly disrupting the food chain of North Carolina, and the secretary of agriculture had not been consulted.”

There were other options to consider, Folwell said. Some businesses already were voluntarily limiting service and encouraging distance between customers.

Limitations or strong guidance were alternatives to shutting down dining and bar areas altogether, he said.

Causey shares Folwell’s concerns. The emergency situation demands fast action, the insurance commissioner told CJ. But Cooper’s decision “didn’t get the discussion it deserved,” Causey said.

It’s uncertain just how many service and hospitality industry employees will be affected over the long haul, said Lynn Minges, president of the N.C. Restaurant and Lodging Association. But as the industry makes up 13% of the state’s workforce, leaders are working overtime to make sure the damage won’t be permanent, she told CJ.

The industry was as prepared as it could be for Cooper’s announcement, Minges said.

If anything, more advance notice from Cooper would’ve helped companies like LM Restaurants “hone their message” as they prepared their workers for hardship, Goldfaden said.

“It would have just given us more time to come up with other options,” she told CJ. “I still think we would have ended in the same place, because there’s only so much … that a restaurant can be able to handle with the current labor and the financial cost that it takes to run delivery and to-go orders.”

“We’re all in this same place where businesses are having to make the worst decisions,” she said. “And I will tell you there is not one company out there that has this level of a doomsday scenario.

“No one has this kind of risk planning.”