Lt. Governor questions validity of governor's NC restaurant ban
Posted March 17, 2020
Updated March 25, 2020
Raleigh, N.C. — Lt. Gov. Dan Forest questioned the validity of Gov. Roy Cooper's order Tuesday afternoon to shut down in-house seating at North Carolina bars and restaurants, saying the governor doesn't have the authority to do it.
Forest said the governor didn't get concurrence from other Council of State members before announcing his decision Tuesday morning, failing to satisfy a requirement in the section of state law that lays out his emergency powers.
"Thus, he does not have the authority to issue this part of his executive order," Forest said in a statement posted to Twitter about 4 p.m.
Cooper spokeswoman Sadie Weiner pushed back quickly. The governor's order was set to take effect at 5 p.m. on St. Patrick's Day, closing bars and restaurants except for drive-thru, takeout and delivery service, in an effort to mute transmission of the new coronavirus.
"It's one thing to disagree, it's another to create a chaotic situation in the middle of a pandemic," Weiner said in a statement. "The governor is taking action to protect the health and safety of North Carolinians and does not need concurrence. The governor and the secretary of (the Department of Health and Human Services) have the authority to do this under state public health and emergency powers law."
A Forest spokesman pointed to section 166A-19.30(b) in North Carolina state code, which grants the governor the power to "regulate and control ... the congregation of persons in public places or buildings."
But that code section begins with this language: "During a gubernatorially or legislatively declared state of emergency, with the concurrence of the Council of State, the Governor has the following powers."
A state of emergency has been declared, but six of 10 Council of State members told WRAL News, either directly or through spokespeople, that they did not concur with the move.
But the governor's executive order, posted after 5 p.m., also references several other code sections that the Cooper administration said don't require Council of State sign-off.
Some deal with quarantine powers or the power to address imminent hazards, one quotes a blanket power to direct law enforcement and one gives the governor authority to restrict "the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate."
Previous virus-related executive orders, including one Saturday closing schools, referenced the code section Forest's office pointed to and specifically said the governor "has sought and obtained concurrence from the Council of State." The new order says Cooper got concurrence for other parts that deal with state unemployment benefits.
Cooper said Tuesday that he hopes the restaurant order won't have to be enforced by local law enforcement and that he wanted to show, by issuing it, how serious the situation is. Federal health officials have said people should not gather in groups of 50 or more, and President Donald Trump said Monday that gatherings should be limited to 10 people.
WRAL reached out Tuesday afternoon to all 10 members of the Council of State, which is a collection of officials elected statewide. The body's Republicans – Forest, Insurance Commissioner Mike Causey, Treasurer Dale Folwell, Labor Commissioner Cherie Berry, Agriculture Commissioner Steve Troxler and Superintendent of Public Instruction Mark Johnson – all said they were against the restaurant ban, with several saying they were given little time to consider it.
Secretary of State Elaine Marshall and Attorney General Josh Stein, both Democrats, said through spokespeople that they concurred with the ban. WRAL has not yet reached Auditor Beth Wood.
The call for concurrence came via email and asked for a response within about 35 minutes.
Folwell said he's asked the administration several times for the results of that poll but hasn't gotten an answer.
Berry spokeswoman Dolores Quesenberry said the commissioner "would like to have been afforded the courtesy of commenting on this item before it was made public."
Troxler said in an emailed statement that he believes the order "will cause a major disruption in the distribution of food across the state."
"I am also concerned that the change doesn’t achieve the goal of social distancing, rather it may create more density of people in lines at grocery stores and to pick up take-out foods," Troxler said in his statement.
The Council of State has six Republicans and four Democrats, including Cooper.
Forest will face Cooper later this year in the state's gubernatorial race. He said in his release Tuesday that he understands "all actions in a time of crisis are very difficult decisions," but some are "so serious they require, by law, discussion with, and approval of, other state leaders."
"His mandate will devastate our economy, shutter many small businesses and leave many people unemployed, especially in the rural areas of our state where food supply is already critical," Forest said in his statement.
The governor's re-election campaign quickly pointed to remarks Forest made during a Monday radio interview. Asked bout the possibility of restaurant and other closures, Forest replied "all things are obviously on the table."
"I'm not involved in those conversations. ... That's the governor's territory," he said.
Cooper campaign spokeswoman Liz Doherty focused on something Forest said much later in his response, though, after he began speaking more broadly about taking the situation seriously.
"We want this curve to flatten as fast as possible. We want the spread of this to stop as fast as possible," Forest said in comments highlighted by Doherty. "The only real way to do that is to take extreme measures."
Until now, the state's response to COVID-19, the illness associated with the virus, had been a bipartisan one, albeit with some grumbling that the governor wasn't consulting other state leaders as his administration rolled out significant announcements.
Brent Woodcox, a staff attorney for the Republican majority in the state Senate, said on Twitter Tuesday afternoon before the governor's executive order was out that Forest "may have a point here legally."
"But this is very risky politics in the midst of a crisis," Woodcox tweeted.
After some blowback, Forest took to social media to say his comments were "about the rule of law, not about the rightness of the decision made by the governor."
"I understand the criticism levied against me," Forest said on Twitter. "But a pandemic should not lead to unquestioned acceptance of every decision a Governor makes, especially when their authority to do so is anything but certain."