NC Lawmakers pass bill expanding dining and drinking options, but Cooper signals a veto

by John Trump

Raleigh, NC – A bill to reopen private bars and clubs, as well as expanding outdoor seating in restaurants and brewpubs, is awaiting a decision from the governor.

photo by Helena Yankovska

He’ll probably veto the measure, which also applies to breweries, wineries, and distilleries. The governor’s orders related to the COVID-19 outbreak limited the establishments’ ability to serve patrons.

The N.C. Senate on Thursday, May 28, passed House Bill 536 by a wide margin, 42-5, and sent it to the House, which concurred along largely partisan lines, 65-53, after an hour-long debate.

House Speaker Tim Moore, R-Cleveland, delayed the House vote Thursday. Moore said when the day’s session convened he promised Democrats they’d get time to review the bill. During that recess, Cooper held a scheduled news conference, giving lawmakers a chance to hear his reaction to the measure — and, perhaps, time for the governor’s team to lobby Democrats directly.

Cooper’s signal of a veto was clear. He said the state is just a week into Phase Two of his reopening plan, and hospitalizations and deaths because of COVID-19 are increasing. The N.C. Department of Health and Human Services reported 827 deaths as of Thursday, though 73% of those people were 65 and older.

“This legislation would mean that even if there was a surge of COVID-19 that would overwhelm our hospitals, bars would still stay open,” Cooper said in a news conference Thursday.

A time to open bars may come, he said.

“That time is not now.”

Cooper took a jab at the Senate, saying the health and safety of North Carolinians are priorities.

“If we do this one, then what’s next?”

The House would need 72 votes if all members were present to override Cooper’s veto, which is unlikely.

In a news conference after the House vote, Moore said there were “incongruities and inconsistencies” in Cooper’s emergency orders. The governor was picking winners and losers, he said. Some businesses could operate mostly as normal with additional safety measures. Others were closed completely with little justification.

Some Democratic senators, before Cooper’s news conference, intimated opposition for opening private bars and clubs amid a global pandemic, which may surge in the fall. Natasha Marcus, D-Mecklenburg, for instance, said the move opens a gateway into dangerous, unknown territory.

“This bill needs a safety switch,” she said.

Sen. Wiley Nickel, D-Wake, was unequivocally direct. But, he said what probably many of his fellow Democrats were thinking.

“We’re taking power away from the governor, and I don’t trust this body to give it back,” Nickel said. “Because it takes power away from the governor, I do not support it.”

The governor isn’t a legislator, Rep. Michael Speciale, R-Craven, said in House debate.

“Governors don’t make laws,” Speciale said. “This isn’t about battling it out with the governor. This is about doing what’s right. We’ve got people whose livelihoods are dependent upon us doing something. The governor hasn’t done anything, and I’m going to tell you I disagree with the governor … from a freedom perspective.”

Cooper criticized the move to open bars because it would present a further threat to public health.

Sen. Rick Gunn, R-Alamance, who has taken the lead in pushing the measure, said local health departments and DHHS have the power to close the businesses should the virus make things untenable. Gunn’s measure, which is temporary, expires 30 days after Cooper lifts the emergency prohibitions and restrictions, or Oct. 31, whichever comes later.

“I’m going to ask our patrons … to be responsible,” Gunn said during Senate debate. “Ultimately it’s going to come down to the behavior of the patrons on how effective this will be, whether it be inside or out.”

Gunn called the bill an economic lifeline to people whose lives, and their businesses, are torn apart by COVID-19. “We have a chance to provide an economic ventilator that may give these businesses a breath of hope to be successful for years to come.”

As it moved through legislative committees, House Bill 536 — at first ABC omnibus reform — was coupled with House Bill 902, also a revised bill. The bills contained separate language for bars and restaurants/brewpubs, but Gunn proposed an amendment Thursday combining them. The amendment passed, 36-10.

Marcus said bars and restaurants are disparate entities. Gunn said they aren’t, as each will follow rules and guidelines from the Centers for Disease Control and Prevention and the state health department.

“It’s not going to turn into a big festival,” Gunn responds.

“The outdoor food and drink service seating capacity,” H.B. 536 says, “ is limited to 50% of the current indoor seating capacity of the establishment, or 100 customers, whichever is less.”

Senators, even despite the objections, generally applauded the bill, with Democrats and Republicans offering stories relating economic freefall and financial ruin. From business owners in urban areas and small towns. Stories about people who have taken loans and mortgaged homes. About businesses losing thousands of dollars each month. About restaurants and bars that have simply boarded up and closed for good. House Republicans echoed those worries.

Sen. Chuck Edwards, R-Henderson, said he fully supports Gunn’s bill. With a caveat.

“I can tell you that a restaurant is not profitable at 50%,” Edwards said. “The only reason I can think that a restaurant would be willing to open at 50% capacity is because that’s one step toward 100% capacity.

“This is a step in the right direction, but we’ve got a long way to go.”

Importantly, the bill says, “The outdoor seating area authorized in … this act shall not be prohibited by a municipality or county because the outdoor seating area is not a permitted use for operation of food and drink services under zoning ordinances.”

In a news release, Senate leader Phil Berger, R-Rockingham, said cities and states across the country are promoting outdoor seating as a safe way to allow bars and restaurants to survive.

California has instituted a regional approach to reopening, and several jurisdictions are changing their regulations to massively expand outdoor seating, the release says. Illinois has a regional approach, and its governor announced that outdoor dining at restaurants is permitted “based on advice from public health officials, who said summer provided a ‘unique opportunity’ to reopen restaurants safely — at least to outdoor diners.”

In Northern Virginia, Arlington County approved a process to provide restaurants with expanded outdoor seating space.

Rep. Chuck McGrady, R-Henderson, the original sponsor of the bill, said he appreciated the principled debate, with two clear sides.

We are a government of checks and balances, McGrady said. “This is an appropriate check and balance.”