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NC sheriffs say Cooper doesn't have authority to allow to-go mixed drinks; his office disagrees

Posted December 23, 2020 2:36 p.m. EST
Updated December 23, 2020 3:14 p.m. EST

Jason Smith, owner of 18 Restaurant Group in Raleigh, shows off a sealed container that restaurants and bars will have to use to sell to-go mixed drinks during the pandemic. WRAL/Aaron Thomas)

— The North Carolina Sheriffs' Association said Wednesday that it can't find any legal grounds to support Gov. Roy Cooper's recent executive order allowing restaurants and bars to sell mixed drinks for takeout and delivery.

Cooper issued the order Monday as a way to limit the spread of coronavirus without hurting the beleaguered hospitality industry, which already is hindered by capacity limits and other restrictions the governor previously put in place.

The order directs the state Alcoholic Beverage Control Commission to waive any state regulations that would prevent people from obtaining a mixed drink in a sealed container as a takeout order or prevent employees and contractors, such as food delivery services, from transporting such alcoholic beverages in sealed containers to customers.

A previous executive order requires restaurants and bars to halt sales of alcohol for on-site consumption at 9 p.m., and they and most other retail businesses must close by 10 p.m. under a nightly curfew designed to discourage people from hanging out late into the night and possibly spreading the virus.

Restaurants can continue filling takeout and delivery orders after 10 p.m., however, and people are allowed to go out during the curfew to obtain food.

"[C]urrent State law does not authorize mixed alcoholic beverages to be sold for carry-out," Eddie Caldwell, executive vice president and general counsel of the Sheriffs’ Association, wrote in a memo to all 100 sheriffs. "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 by the Chair of the ABC Commission (even if directed to do so by the Governor)."

Similarly, state law prohibits people from transporting alcohol in a vehicle in anything other than the manufacturer's original container, Caldwell noted.

"North Carolina [statutes detail] the legal powers and duties of the ABC Commission. While these powers and duties are varied, they do not include the authority to suspend or rewrite a State statute or any other criminal law violation imposed by the North Carolina General Assembly," he wrote in the memo.

Cooper spokeswoman Mary Scott Winstead said the governor consulted with the Department of Justice before issuing the order. Also, she said, no one on the Council of State objected to allowing to-go drinks before giving their support for the plan.

"Local law enforcement should continue to enforce the Governor's executive orders and state law," Winstead said in a statement.

Under the order, which took effect Monday and runs through Jan. 31, to-go drinks are limited to one drink per person per order, and everybody participating in the order must be present to accept delivery. No orders can be taken or delivered after the time at which the restaurant or bar would normally cut off sales under local laws. Also, no orders are allowed to university campus residence halls or in communities where alcohol sales are prohibited.

The drinks wouldn't have to be part of a food takeout or delivery order.

Delivery drivers must be at least 21 years old and have to undergo training before being allowed to deliver to-go drinks. They are responsible for verifying the identity and age of everyone receiving a drink and determining if anyone is too intoxicated to get a drink.

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