COVID rules closed his downtown Durham bar. Now he wants the city and NC to pay.
A downtown Durham bar owner is suing the city and North Carolina for thousands of dollars, contending COVID-19 emergency orders violated his constitutional rights and cost him his business.
Kevin Slater, owner of The Atomic Fern, filed the lawsuit Thursday after recently getting locked out the Parrish Street business he opened in 2015.
“We are being punished for compliance,” with the state’s executive orders, Slater said in an interview.
For years the casual bar with a wide selection of board games made money but the owner fell behind on his rent after city and state executive orders in March closed restaurants and bars to prevent the spread of COVID-19, the lawsuit states.
The Atomic Fern, which fits into the private club category since it doesn’t serve food, was named the third geekiest bar in the United States and Canada a few years ago by SYFY WIRE, the online magazine for SYFY, a science fiction cable channel.
The small business isn’t alone in closing and made it longer than many.
Businesses closing
In the first six months of the pandemic, more than 163,700 businesses listed on Yelp, the crowd-sourced review site, had closed, according a September Yelp report.
Across the Triangle, closings included 29-year-old Elmo’s in Carrboro, the 48-year-old Ye Olde Waffle Shoppe in Chapel Hill and 70-year-old Kimbrell’s Home Furnishings in downtown Raleigh.
Bars have been especially hard hit, as all remained closed through October, when some could open at 30% of their outdoor capacity.
In June the N.C. Bar and Tavern Association sued Gov. Roy Cooper in an effort to reopen bars alongside restaurants. That suit and others failed, with courts ruling the state could legally distinguish between bars and restaurants, The News & Observer reported.
The association has a live clock on its website that, on Thursday morning, counted each second of the 316 days and 14 hours that bars had been closed.
The October change didn’t help The Atomic Fern because it didn’t have outside seating, Slater, 45, said in an interview.
Another executive order allowed bars to sell to-go cocktails starting Dec. 21, but that wasn’t much help either, Slater said, saying selling or delivering a few cocktails a day wouldn’t be worth it.
“All the quote unquote relief efforts that have been put forward .... is really no help,” he said.
Slater concedes that orders to slow the pandemic were needed and he isn’t asking to reopen, but the orders created a situation where his business was treated differently than others.
“While the orders have required plaintiffs to shut down The Atomic Fern, they did not require landlords or utility companies or other companies to shut down,” the lawsuit states.
The situation resulted in the government violating Slater and his company’s 14th Amendment right to equal protection under the law, the lawsuit argues.
It also violated Slater’s rights under the Fifth Amendment by taking his property without compensation, it states.
The lawsuit is seeking more than $25,000, the minimum threshold for civil lawsuits to be filed in Durham County Superior Court, to cover lost income.
Long shot
Legal experts said the lawsuit is a long shot.
Eric Muller, a UNC-Chapel Hill law professor, said similar lawsuits filed around the country have failed.
“It’s very difficult for me to imagine that a court would hamstring government from protecting public health during a pandemic emergency by forcing the government to pay all business owners for the adverse impacts on their businesses,” he said.
This lawsuit and others argue that government orders restricting businesses have resulted in an “inverse condemnation,” in which the government takes or damages private property through action or regulation but fails to pay the property owner.
A challenge for this and other cases, Muller said, is that the law considers the government’s reason for the disputed action.
“This claim strikes me as being very unlikely to succeed,” he said.
Rick Su, another UNC law professor, agreed.
“That is because the underlying law that they are arguing, the regulatory taking, is actually a pretty high bar in order to prove it,” he said.
Su also pointed out that the 14th Amendment doesn’t necessarily provide equal protection across the board.
“Or we wouldn’t be able to regulate different businesses differently or regulate any action differently,” he said.
“Fundamentally unfair’
Slater’s attorney, Daniel Meier, said he knows the lawsuit is a long shot, but he is hoping it will draw attention to the issue.
The government has essentially shut down Slater’s business and handed it to the landlord, he said.
“There is just something fundamentally unfair of shutting down only select businesses, but them doing nothing to protect those businesses,” he said. “Because it’s a public health emergency, you can shut down a bar. Why can’t you also shut down a landlord?”
Meier said they also hope the lawsuit will push government officials to do more to help businesses facing eviction.
“Downtown Durham is not going to exist when we get on the other side of this,” he said.
Happy hour
During the pandemic, Slater has turned to alternative sources to help him and his employees.
In March, after being closed two weeks, he held a crowdfunding campaign that raised $5,000, which went to his four now-former employees. Another crowdfunding effort to raise $3,650 to create a YouTube channel around playing board games has only raised $928.
Over the summer, Slater received a $10,000 grant from the city’s Durham Small Business Recovery Fund. About $8,000 went to rent and the rest to renewing his liquor license, he said.
By January, Slater was about $20,000 behind on his rent, which is about $2,400 a month.
The Atomic Fern has also held happy hours via Facebook Live on Tuesdays and Thursdays.
On Tuesday’s episode, Slater started outside the bar, walked up to the door and tried to get in, but the door was locked. He asked a second person to try his key, which didn’t work.
“You mean the landlord changed the locks,” Slater said.
Slater said his landlord sent him a letter indicating he could walk away from his business and owe nothing, but Slater declined. He later got an email indicating the lease had been terminated. The News & Observer reached out to the landlord, who declined to comment via email.
Slater has hired another attorney and is fighting the eviction, he said, along with filing the lawsuit arguing a violation of his constitutional rights.
Slater said he put everything he had into The Atomic Fern.
“This is the one thing I have,” he said, “and I am going to fight for it.”
This story was originally published January 28, 2021 at 11:44 AM.
