Punished for Compliance

  • by

I did something yesterday that I never wanted or thought I’d do because I find myself in a situation I never thought I’d be in. Yesterday I filed a lawsuit against the State of North Carolina and the City of Durham. I’m publishing this here because so far the story that has made the rounds has the tone of “Covid closed his bar and now he wants the city and state to pay” or “Popular bar sues due to lost revenue”. This is not the case at all. All I and many others want is to not lose our livelihoods. I’m not looking for a payout. I’m looking for pre-pandemic status quo. I’d like to state up front that I personally agree with the governor’s shut down order. Bars and restaurants should be closed to the public during the worst pandemic seen in generations. During this unprecedented time, private clubs are being treated unfairly. What is a private club? In North Carolina, there is no such legal entity as a “bar”. There are restaurants which serve food and alcohol, and there are private clubs, which only serve alcohol and require a membership. On March 17th, Governor Cooper and Mayor Schewel ordered non essential businesses closed. Initially we thought we’d be closed for 2 weeks. That has of course turned out to not be the case. In the summer of 2020 Durham offered $1 million to go in to a small business recovery program. From that, The Atomic Fern was allocated $10,000. $8000 of that went to back rent. The rest went to renewing a liquor license for a space that was still closed. We were hopeful that this pandemic would get sorted out and we’d be able to open sometime in the near future. That was July of 2020. As of January 2021, we are still closed. You may have heard that “bars have been allowed to reopen with 30% of their outdoor seating” or that “bars can now sell cocktails to go”. This is the relief that has been offered. Most private clubs that I can think of do not have or have extremely limited outdoor seating, Also this was offered during winter. The cost of selling a few to go cocktails is higher than any kind of revenue that would be generated and they can only be sold one at a time. These and other efforts, such as closing down streets, have benefitted restaurants and other businesses that have been allowed to be open in some capacity and not private clubs, although those businesses are also still struggling. Again, I want to emphasize that we do not believe that we should be allowed to open. The relief we all needed (past tense) is a moratorium on rent and utilities. The difference on a moratorium on rent and a moratorium on evictions is significant. Saying to business and residential renters “don’t worry, you can’t be evicted, but in 6 months you owe your landlord $20,000” is no kind of relief. A moratorium on rent is essentially a pause on rent and rent doesn’t accrue. I think we’re past that though. Durham and the State of North Carolina decided to go a different way. They decided to go with option 1. Now, we face mass evictions in the summer or fall of 2021 if no aid comes. At The Atomic Fern we are (as of this writing) about $20,000 behind on rent. We are behind on utilities as well. We were 100% closed from mid March until the end of October, when we were allowed to open 30% of our non existent outdoor seating. Then we were allowed to sell to go cocktails one at a time. This effectively means that we are still 100% closed and are unable to generate any revenue to even make an attempt to pay our back rent. The city and the state need to recognize that private clubs have been treated differently and unfairly from other businesses that are able to generate some revenue and that we are all behind on rent. We don’t qualify for Payroll Protection grants because we no longer have employees. I’ve been denied a business loan from the Small Business Administration. In mid January the landlord changed the locks, effectively ending The Atomic Fern, the business I put it all on the line for. I closed my retirement fund and spent every nickel I had to open the doors 6 years ago and I and others have put literal blood, sweat, and tears in to creating a space that has become a warm, beloved, and positive space in Durham. I’m doing my best to have the eviction reversed. I haven’t given up. If we don’t fight for the things we believe in and have worked hard for, then why bother? I’ve been asked why I’m suing the city as well as the state. It’s been commented to me that “taking money from the city of Durham is taking money from the people of Durham”. I think the city has the responsibility to take care of its culture as well as its people. Do I expect this lawsuit against the city and state that was filed to be successful? The truth of the matter is that most of these lawsuits fail. The success I hope for is that this lawsuit will be a kick in the nuts to the city and the state to wake them up to the fact that small businesses like this are flailing and failing. Small businesses run by real people. This isn’t just about me or The Fern. This is about everyone who has been ignored during these trying times. The Arcanas and the 106 Mains. The Criterions and the Pinhooks. The Surf Clubs and the Picklebacks. All the countless others that have all been virtually ignored for the past 10 months. I’m hoping that maybe my loss can help others. We need real relief now and not some PR stunt like to-go cocktails. It’s time to step up and fix the mess that has been made by delaying these actions. It’s time to stop punishing us for compliance.