In COVID-19 crisis, SC Gov. McMaster can order masks in restaurants, judge rules

A state circuit judge has upheld Gov. Henry McMaster’s executive order requiring customers and workers in restaurants to wear face masks to prevent the spread of the highly contagious, sometimes fatal COVID-19 virus.

In a 38-page order, Judge J. Mark Hayes II wrote that McMaster had the lawful authority to issue executive orders in a public health crisis, such as requiring face masks in restaurants. The judge also rejected a request for an injunction prohibiting McMaster from issuing the order.

The judge’s order applies to other gubernatorial restrictions on pre-coronavirus normal activities, such McMaster’s orders limiting the number of people in certain places or certain kinds of gatherings.

“The General Assembly, in recognition that the Executive needs to quickly respond to the needs of the State in a public health emergency, gave the Governor emergency powers,” the judge wrote.

Had the General Assembly wished to check McMaster’s power during the ongoing health crisis, it could have done so, the judge found.

In this case, Ike’s Korner Grille and its owner, Neil Hampton Rodgers, were asking the court to rule that McMaster did not have the authority to issue such an order.

Although the legal aspects of the case turned on whether the governor exceeded or abused his power as governor to issue the order, the broader aspect of the case pitted a purported right of an individual or business against the power of the

governor who, during a life-and-death health crisis, seeks to protect the broader public interest.

McMaster had been granted emergency powers, and he was “responding to the evolving and wide-ranging threats posed by this unique public health emergency,” the judge wrote.

In his order, Judge J. Mark Hayes II left no doubt that he considered coronavirus a dangerous disease.

“It is uncontested that the COVID-19 virus has infected and killed thousands of South Carolina citizens,” the judge wrote. “Health experts know of no known medical treatment or vaccine to prevent the spread of the virus.”

McMaster’s actions were aimed at protecting the public health, health care workers and the state’s economy, the judge found.

As of Thursday, coronavirus has killed 3,817 South Carolinians and infected 179,832 since March, according to the S.C. Department of Health and Environmental Control. The virus has killed more than 241,000 Americans and infected some 10.4 million, according to Johns Hopkins University, which tracks the disease.

In a complaint in the case filed in September, Ike’s Korner Grille was described as an “iconic bar and grill in Spartanburg County” that has operated 60 years and is now operated by a third-generation family owner, Neil Rodgers.

The lawsuit said that Rodgers has been harmed by the governor’s allegedly unlawful states of emergency and executive orders that have forced the bar and grill to only offer take-out food.

Because of McMaster’s executive orders limited what Ike’s could do, the lawsuit, the State Law Enforcement Division, the Spartanburg County Sheriff’s Department and the OSHA have all issued citations to Ike’s. The enforcement actions all cited the governor’s orders.

Rodgers “is in his prime working years. These Executive Orders have damaged his business at a time when he should be setting money aside for retirement. Even being allowed to reopen, he must re-build his customer base while complying with restrictive orders regarding limited occupancy, limited hours, social distancing, and other anti-viral mandates,” the lawsuit said.

Ike’s lawyer, Robert Merting of Greenville, noted Thursday that the lawsuit is still going but had no further comment.

McMaster spokesman Brian Symmes said, “This is exactly what we expected. The governor took an extremely narrow and targeted approach towards curbing the spread of the virus and — of course — we always knew that he was in lockstep with the Constitution.”

Face masks have become a political flash point. During the presidential campaign, President Trump made conflicting statements on the value of the facial coverings to prevent the spread of COVID-19. President-elect Biden urged people to wear face coverings and was rarely seen without a mask.

The federal Centers for Disease Control and Prevention says that face masks protect both the wearer and those nearby against COVID-19.

This story was originally published November 13, 2020 at 12:00 AM.