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Why breweries, not bars, were able to open under Phase 2 plans

Gov. Roy Cooper says on Monday he will announce a decision on whether or not to reopen more of our state under a Phase 3 plan

GREENSBORO, N.C. — As the state anticipates Gov. Roy Cooper's plans for phase 3 of reopening, some businesses are still navigating procedures and processes under phase 2. 

Some businesses like restaurants and breweries were able to open under phase 2 late in May. However, bars are still supposed to be closed.

A recent move by the legislature to allow bars to reopen was vetoed by Cooper. 

Cooper's Executive Order 141 defines bars as establishments that sell alcoholic beverages for on-site consumption, while places like breweries can open because they produce alcoholic beverages for off-site commercial sales. 

Guidance on Section 8(A) of Executive Order No. 141 May 22, 2020. 

Section 8(A) of Executive Order No. 141 orders that entertainment and fitness facilities, including but not limited to Bars, must remain closed. 

"Bars" is defined in Section 1 of the Executive Order as follows: 

Establishments that are not eating establishments or restaurants as defined in N.C. Gen. Stat. §§ 18B-1000(2) and 18B-1000(6) ... and that are principally engaged in the business of selling alcoholic beverages for onsite consumption. 

Some restaurants call themselves "breweries" or "bars;" some breweries call themselves "restaurants" or "bars;" and some bars call themselves "restaurants" or "breweries." 

As a result, we have received questions about how to interpret whether an establishment is within the Executive Order's definition of "bar" and must remain closed. 

An establishment shall not be considered to be "principally engaged in the business of selling alcoholic beverages for onsite consumption" — and it may be open under Executive Order No. 141 — if it meets the following test:

• It produces alcoholic beverages for commercial sale off-premises and is, therefore, permitted by the ABC Commission under N.C. Gen. Stat. §§ 18B-1101 to 18B-1105. 

The import of this Guidance is that eating establishments and restaurants as defined in N.C. Gen. Stat. §§ 18B-1000(2) & (6) and breweries, wineries, and distilleries permitted under N.C. Gen. Stat. § 18B-1100 et. seq. are allowed to open under Section 8(A) of Executive Order 141. 

NOTE: If any customers consume food and/or beverages on-premises at the commercial winery, brewery, or distillery, the Emergency Maximum Occupancy requirements, Core Screening, Signage, and Sanitation requirements, and other regulations for restaurants under Section 6(C)(2) of Executive Order No. 141 apply. 

Therefore, any customers consuming food or beverages on-premises must be in seated groups that are spaced at least six feet apart, and customers or guests will be limited to 50% fire capacity. 

Those seeking further guidance regarding Section 8(A) of Executive Order should contact the NC ABC Commission."

An item on the Frequently Asked Questions section also tries to simplify the order.

Can breweries and wineries be open in phase 2? 

Bars, which are defined in Executive Order 141 as "businesses that are principally engaged in the business of selling alcoholic beverages for onsite consumption," are closed in Phase 2. However, breweries, wineries, cideries, and distilleries are able to open under Phase 2. This is because these entities are principally engaged in the business of producing alcoholic beverages for commercial sale off-premises. Any open brewery, winery, cidery, or distillery must follow the requirements for restaurants under this executive order."

Permits from the ABC Commission could also play a role alongside the establishment's primary business engagement. Below is part of a statement from the NC ABC Commission.

"A key variable in the ABC Commission guidance for determining whether an ABC permit holder falls under the definition of a restaurant or a bar is the principle type of business the ABC permit holder is engaged in. It is more likely that a business can be exempt from being considered a "bar" if it is not "principally engaged in the business of selling alcoholic beverages for onsite consumption". If a business's principle purpose is to sell food (restaurant), or to be a commercial producer (like a brewery), or to sell retail products for off-premise consumption (like a wine shop), then that business is less likely to meet the definition of a bar. If the primary purpose is to sell alcoholic beverages for onsite consumption, then the business is more like a bar and should remain closed. Additionally, certain member-only clubs could fall under the definition of restaurants if their pre-Emergency Declaration normal operations included the service of both food and drink, and they follow all safety requirements laid out in the Executive Order. 

"Because the circumstances are different for each business, we encourage ABC permit holders who are unsure about their business to speak with local law enforcement, their local Alcohol Law Enforcement (ALE) Agent, and/or local Health Department officials to ensure their plans align with the Governor's Executive Order and meet all the appropriate Phase 2 guidelines."

The NC Craft Brewers guild also has additional guidelines for members. 

"We operate as production Brewery we also have taprooms and about a third of our industry is a combination of restaurant and production facility," said Richard Greene of the NC Craft Brewers Guild.

The guild initiated the #NCBeerPledge that customers can also follow. The pledge will be posted at breweries that open under the phase 2 plan and going forward.

The management at Four Saints Brewing Company in Asheboro, which opens back up this week, plans to follow those guidelines and has already implemented their own procedures.

"Keeping up with the sanitation, making sure we train our staff appropriately, making sure we are adhering to all the requirements from the state, and doing as many of the recommendations as possible," said Joel McClosky, owner of Four Saints Brewing Company. 

The brewery will require patrons to wear masks and orders would be sent in by text to give workers space to social distance.

The business plans to open Friday.

Cooper said next Monday he will make a decision about reopening more of our state. 

He'll tell us if we will enter phase 3 or if we stay in phase 2, a while longer. 

Cooper said it's all based on the data.

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