By Hunter Hines
Christian Action League
December 30, 2020
Last week, the North Carolina Sheriffs’ Association sent a memo via email to all the state’s sheriffs saying that they could not find any legal grounds for Governor Cooper’s Executive Order No. 183. The governor’s order, which was issued December 21st, authorizes and instructs the ABC Commission to allow certain mixed beverage permittees (restaurants, hotels, private clubs, private bars, and holders of distillery permits) to sell and deliver mixed beverages for off-site consumption.
The order’s purpose, the governor said, was to help a struggling hospitality industry, which has already been hindered by capacity limits and other restrictions placed on such establishments during the pandemic.
The memo to the state’s sheriffs was from Eddie Caldwell, the executive vice president and general counsel of the Sheriffs’ Association. Caldwell stated, in summary, two primary concerns with the governor’s executive order. They were:
- “Current state law does not authorize the sale of a mixed alcoholic beverage for carry-out or delivery to the customer, even if the alcoholic beverage is sold and transported off-premises in a sealed container. We are not aware of and have not found any legal authority that would authorize an override of this State law prohibition by the governor or the chair of the ABC Commission (even if directed to do so by the Governor).
- “Current state law does not authorize the transportation of any spirituous liquor in the passenger area of a motor vehicle in anything other than the manufacturer’s unopened original container. We are not aware of and have not found any legal authority that would authorize an override by the governor or the chair of the ABC Commission (even if directed to do so by the governor) of the statutory prohibition against transporting any spirituous liquor in the passenger area of a motor vehicle in anything other than the manufacturer’s unopened original container.
“Any spirituous liquor in any container other than the manufacturer’s unopened original container would have to be transported in the trunk of a motor vehicle or other area considered by law not to be in the passenger area.”
Cooper’s office has since responded to the sheriffs’ concerns with the following statement:
“The Governor’s Office works to ensure that executive orders adhere to state law and has consulted with the Department of Justice and received concurrence from the Council of State without objection in allowing to-go beverages. Local law enforcement should continue to enforce the Governor’s executive orders and state law.”
Sen. Phil Berger, Senate President Pro-tempore, also responded with his own statement to ABC 11, which read:
“There’s a question as to whether Gov. Cooper has the authority to make this decision, even with Council of State approval. The Sheriffs Association’s legal interpretation is likely correct. Now, whether someone sues over it is a different question. On the merits of the policy, Sen. Berger personally supports a temporary change in law, but he’s only one vote of 50, and sufficient support within the Senate did not materialize when the issue came up earlier this year.”
Rev. Mark Creech, executive director of the Christian Action League, noted that the sheriffs and Berger were right. “We fought this battle when legislation for curbside cocktails was included in the COVID relief bill during the short session. The House passed the measure with the alcohol provision in it, but the Senate was more deliberative and wisely took it out,” said Creech.
The Christian Action League maintains these concerns about the governor’s order:
- Drinking has been sky high during the COVID 19 crisis. Mixed drinks to-go pose a unique challenge for people suffering from alcoholism or an alcohol use disorder. People who drink too much often do so to cope with stress, and studies have shown that people who drink alone, which cocktails to-go facilitates, are at greater risks. Moreover, people who drink too much weaken their immune system and become more susceptible to respiratory ailments like pneumonia and possibly the coronavirus.
- Curbside cocktails create scenarios that make impaired driving and underage drinking more likely, despite safeguards put in place.
- The governor’s order could work against the state’s overarching goal of keeping Emergency Rooms and hospitals freed up.
- The current order has no requirement for the purchase of a meal along with an alcohol purchase. It does not require a food purchase at all, something that helps. Alcohol mixed with food takes longer to absorb than alcohol consumed on an empty stomach, which can help prevent overconsumption.
- It does not require that communities opt-in or opt-out of these sales. Therefore, it removes local control of liquor sales. When voting for the sale of mixed beverages, no community in North Carolina ever agreed to mixed cocktails to-go. Therefore, the will of the people is being circumvented in favor of those who sell liquor.
- There are practically no standards or resources made available for enforcement or compliance with the order. The order is quite confusing for law enforcement.
- The order also calls into question where the liability for problematic or illegal sales or delivery lies. It’s not clear.
In a recent press release regarding the governor’s executive order, Rev. Creech said, “I believe that if the governor really wants to help an ailing hospitality industry, then he ought to lift these draconian lockdown restrictions on businesses and allow them to open up. I don’t mean to say that the coronavirus isn’t real. Nevertheless, none of this makes any sense for a virus that 99.4-6% of those who contract it recover. The median age of death is over 70 years old with an underlying health condition, and for which getting past this pandemic relies on herd immunity and openness. Until recently, medical experts for decades warned against disturbing social functioning in the event of disease. Yet this is what’s happening!”