South Congaree, SC (Paul Kirby) – Over the last several days, people have begun asking questions about how much power Governor Henry McMaster has in regard to making decisions that affect businesses. He has already placed South Carolina under a state of emergency. Then, using his executive powers, on Wednesday, March 18, 2020 he ordered all bars and restaurants to close their dining rooms until further notice.
Did Governor McMaster have the constitutional authority to do that? Some wondered out loud what would happen if a small eatery that was being seriously hurt by a reduction in business due to the closing of their dining room just defied the governor’s order and let people in on a dine-in at your own risk basis.
Since these questions were being openly discussed on the Lexington Ledger’s live streaming morning show Good Morning Lexington County with many viewers expressing their own opinions, we have done some research.
Probably the best answer we received was from a member of the legislature who is also a brilliant attorney. In his opinion, what the governor has done so far is legal. He said that because the governor has declared a state of emergency during the COVID-19 coronavirus pandemic, Governor McMaster did have the power of the law behind him to order dining in be shut down at restaurants. Our expert said if he had ordered restaurants and bars (ones who serve food) to close completely, not just their dining rooms, he’d probably be stepping over the line. He didn’t order them to shutter their businesses. Almost every bar I've been in sells some sort of food. All these can can stay open, they just have to utilize their drive-thru, a delivery service, or curbside pickup. We didn't ask but assume the could not deliver a mixed drink. When our expert was asked who would enforce this order, he said he didn’t exactly know; probably SLED or DHEC. Overnight Thursday, SLED issued a press release that cleared things up a great deal.
In their release, state officials said that Governor McMaster ordered and directed any and all restaurants or other food-service establishments, which is defined as a place where food is prepared, produced, or otherwise offered for sale food or beverages of any kind for on-premises consumption in South Carolina to suspend services for, and may not permit, on-premises or dine-in consumption. This order is in place from Wednesday, March 18, 2020 through Tuesday, March 31, 2020.
In the governor’s order, he also said that he hereby authorizes, permits, and encourages restaurants to prepare, produce, or otherwise offer or sell food or beverages for off-premises consumption to the extent currently authorized, permitted, or otherwise allowed by law. Basically he encouraged them to use delivery, carry-out or drive thru distribution, curbside pick-up, or other alternate means to get the food to their customers.
There were some exceptions mentioned. They include independent living facilities and licensed healthcare facilities. He also said that this order doesn’t apply to grocery stores, pharmacies, convenience stores, gas stations, or charitable food distribution sites. His order did say sit-down food or beverage service within these facilities is prohibited.
If a business simply defies the order and opens their bar or on-premise dining room he makes clear that his order should be enforced. First, the DOR or SC Department of Revenue and the South Carolina Law Enforcement Division, SLED, are authorized to administer the provisions of the governor’s order and enforce compliance with that order.
SLED’s release reads that pursuant to section 1-23-370(c) of the South Carolina Code of Laws, as amended, that if the agency finds that public health, safety, or welfare imperatively requires emergency action and a business is operating outside the order, the DOR could suspend that business’s license. This suspension would be ordered pending proceedings for revocation or other action
This is where it gets interesting. According to South Carolina’s Code of Laws, the agencies listed below are authorized to enforce the governor’s order, as well as Executive Order No. 2020-08. That portion says that any law enforcement officer or agency can do this, “By use of all appropriate available means.” It goes further by authorizing, “Any and all law enforcement officers of the State or any of its subdivisions to do whatever may be deemed necessary to maintain peace and good order.” Just to make it clearer, the e-mail also says that the governor orders all state, county, or city officials to enforce the provisions by taking any, “Appropriate legal action.” In another provision it makes it clear that the owner who defies the order could be fined or even jailed.
Small businesses are surely going to be hurt by this order, but the governor obviously thinks, as many others do, it’s just a bad idea to congregate in any number or expose yourself needlessly to human-to-human contact. He just has the power to fine or jail you if you don't listen. Defying Governor McMaster’s order is not only illegal, it’s just a bad idea.