The N.C. Sheriff's Association is questioning the legality of how cocktails and other mixed adult beverages can be transported through the carryout service permitted by Gov. Roy Cooper.
On Monday, Cooper issued Executive Order No. 183, which permits businesses to offer carry-out and delivery of cocktails between 9 p.m. and 2 a.m.
Businesses offering the option must hold permits from the state ABC Commission. The order lasts through at least 5 p.m. Thursday.
Meanwhile, state Treasurer Dale Folwell is citing Cooper's order as another example of the governor giving Council of State members little heads-up when seeking agreement for a statewide order.
The Insider, an online media outlet that reports on the legislature, said Council members were given from 8:39 a.m. to noon on Monday to determine whether to concur. Cooper announced the order in a statement released at 4:04 p.m. Monday.
Cooper said the executive order "will help people avoid settings that can contribute to increased viral spread, while giving restaurants and bars a financial boost that they need right now."
State law does not permit the consumption of alcoholic beverages while driving.
Eddie Caldwell, general counsel for the sheriff's association, sent a memo Wednesday to members explaining the association's stance on Cooper's order.
The order said "it shall not be unlawful" for the beverage in the sealed container to be placed in a passenger seat of a vehicle.
While Caldwell cited the order, he wrote that "current state law does not authorize mixed alcoholic beverages to be sold for carryout."
"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."
Caldwell said that if any action is taken by the governor or ABC commission chair, it would be posted on the commission's website.
"As with all other executive orders, state and local law enforcement officers may enforce the provisions contained in the governor’s executive orders and a violation constitutes a Class 2 misdemeanor," Campbell wrote.
Forsyth County Sheriff Bobby Kimbrough could not be immediately reached for comment on the association's memo.
Cooper's office could not be reached for comment Thursday on Caldwell's memo. Cooper’s office told Durham TV-station WTVD that the order was vetted by the N.C. Justice Department.
Eight of the 10-member Council of State concurred on the order.
However, Folwell declined to participate.
Folwell said Thursday that "I don’t think a law-enforcement officer on a two-lane road at 3 a.m. in North Carolina can enforce it; it just doesn’t seem feasible.”
“It seems that the governor thinks that the ability to order a cocktail to go is going to fix these problems, and the sad fact is that he’s wrong."
The executive order permits customers to take home drinks that they began consuming inside an establishment if the alcohol is placed in a sealed container and transported in the passenger area of a vehicle.
Caldwell said state law only permits such transportation if it is sealed in the manufacturer's original container. Those beverages that are not in an unopened manufacturer's original container are required to be placed in the trunk of a vehicle or other areas considered by law not to be a passenger area.
"Current state law makes it unlawful to transport a mixed alcoholic beverage in the passenger area of a motor vehicle even if a bar or restaurant mixes the alcoholic beverage and seals it in a container for transport," according to the memo.
Otherwise, it is a Class 3 misdemeanor to have a mixed adult beverage in the passenger area.
"The state’s sheriffs face a quandary: Enforce the law as written, or accept an executive order that defies the law," said Mitch Kokai, senior policy analyst with Libertarian think tank John Locke Foundation.
"One suspects that sheriffs are likely to respond in different ways to a situation that lacks legal clarity.”
Kokai said resolving the legality question may take the involvement of the Republican-controlled General Assembly in yet "another separation-of-powers legal struggle with the governor."
"The Emergency Management Act gives the governor more authority — though the extent of that authority is disputed. But, his executive orders should not directly contradict state law."
"But, even those who think to-go sales are a good idea might not accept the precedent of allowing the governor to take this type of action without legislative approval," Kokai said. "The General Assembly could decide to take this issue to the state’s courts for clarification.”
Executive Order No. 183 presents an intriguing case study on what prevails when an order contradicts state law, said John Dinan, a political science professor at Wake Forest University who is a national expert on state legislatures,
"In regard to the general question of whether an executive order can override a contrary state law, the answer is that it cannot," Dinan said.
"This holds true both at the state level and at the federal level, in terms of the inability of presidential executive order to override a contrary congressional statute and the similar inability of a gubernatorial executive order to override a contrary state statute."
Dinan cited as a recent high-profile example the dispute over whether state statute law providing for return of absentee ballots by a certain date could be overridden and the date extended.
"In that case, the override was accomplished through a legal settlement between a state board and litigants, and a legal settlement or judgment can override a state statute," Dinan said.
"The same is not true of a governor's executive order, which cannot override or disregard state statute law.
"I leave to others who have studied this area of alcohol policy to comment on whether there really is a conflict between the executive order and state statute law."