He sued the city and state after NC’s COVID rules closed his bar. What the judge did.

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A judge dismissed a Durham bar owner’s lawsuit Wednesday that argued the city of Durham and the state of North Carolina owed him thousands of dollars after COVID-19 emergency orders violated his constitutional rights and cost him business.

Durham County Superior Court Judge Orlando Hudson dismissed the lawsuit after lawyers for the city and the state said the argument put forth by Kevin Slater, owner of The Atomic Fern, didn’t meet the legal standard to hold governments responsible for actions taken to prevent the spread of COVID-19.

Matthew Tulchin, special deputy attorney general, said he sympathizes with frustrated bar owners, but that doesn’t mean they have a constitutional claim. The emergency orders were put in effect to protect the public and bars were closed because indoor gatherings increased the risk of the coronavirus spreading through respiratory droplets, he said.

“To allow plaintiffs to assert claims against the executive orders that were issued during the course of an emergency public health issue would severely restrict the state’s ability to respond to such urgency in the future,” Tulchin said.

Tulchin also argued that none of the bar owner’s constitutional rights were violated.

From the start of the lawsuit, Slater’s attorney Daniel Meier said he knew the lawsuit was a long shot, but he was hoping it would draw attention to the struggles bar owners were facing. Beyond the pandemic, many small businesses are struggling to stay in their spaces as some landlords want to rent to tech and other companies that will pay higher rents, Meier said.

On Wednesday Meier argued it was unfair how the city and state treated businesses deemed nonessential differently. Restaurants that serve alcohol and have bar areas were allowed to remain open, he noted.

“They basically pick winners and losers,” Meier said.

Slater filed the lawsuit after getting locked out in January of the Parrish Street business he opened in 2015. 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.

“We are being punished for compliance,” with the state’s executive orders, Slater said in an interview then.

For years the casual bar with a wide selection of board games made money, he said, but he fell behind on his rent after city and state orders in March closed most restaurants and bars, the lawsuit states.

Meier told Hudson that Slater was seeking at least $12,000 in back rent that he owes his landlord, which has evicted the bar.

The lawsuit concedes that orders to slow the pandemic were needed but treated Slater’s business 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 Durham Report

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