Government mandates and authoritarian COVID-19 rules have crushed small businesses in America. In the nation’s capital alone, hundreds of restaurants are now closed. Others are struggling to make ends meet.
Despite all the happy talk from President Joe Biden in last week’s State of the Union address, some businesses will never recover. For every Democrat politician who suddenly is abandoning COVID-19 mandates, scores of shattered businesses are left in their wake.
For nearly two years, D.C. Mayor Muriel Bowser and the D.C. Council invoked emergency powers—imposing mask mandates for schools and businesses and requiring restaurants to check customers’ vaccine status.
A few courageous business owners in the District of Columbia spoke at The Heritage Foundation last week about the city’s restrictive COVID-19 rules. They’ve felt the effects firsthand.
One of them is Eric Flannery, a Navy veteran and co-owner of The Big Board on H Street NE. Flannery and his lawyer, Robert Alt, president and CEO of The Buckeye Institute, joined “The Daily Signal Podcast” to explain why they’re fighting for The Big Board’s survival in a city where political leaders have amassed unprecedented power.
Listen to the podcast or read the lightly edited transcript below.
Rob Bluey: Eric, take us back to the beginning of The Big Board. Give us a little bit of the history and the customers that you serve in your neighborhood.
Eric Flannery: Big Board opened in October 2011. It was a life dream of mine to come out and open up a bar restaurant. My brother had moved to Washington, D.C., a couple years before here and he called me up and said, “Hey, I think we’ve got a great place to go open up right here in Northeast D.C.” I was living out in Washington state at the time.
And honestly, I laughed at him on the phone, because I remembered what Northeast D.C. had looked like many years before that. And he brought me out and I met his neighbors and met the neighborhood and the people and looked around and said, “Oh no, you’re right. Northeast D.C. is going to be a great place for us to open this up.”
Looked around a lot of places, called all the for sale/for lease signs that were there, and was introduced to my landlord. And he took a chance on us. The last time I’ve worked in a restaurant was, I don’t know, 1992 when I was working in Chuck E. Cheese. So he took a chance and 10 years later, we’re still around.
And mostly, well, I have [a] fantastic staff and co-workers. They really are. And we have clientele from everywhere. All shapes, all sizes, all people. We’ve had 1-year-old birthday parties. We’ve had 40-year-old birthday parties. You watch sports, you don’t watch sports. We are always happy to have you.
Bluey: It’s a fantastic place to be, Eric, and thank you for what you’re doing now. Unfortunately, you’re here under not the best of circumstances. Because of the District of Columbia’s COVID mandates and some of their other restrictions, you have taken a stand and they have come after you directly. Bring our listeners up to speed about the situation that The Big Board finds itself in today.
Flannery: Today The Big Board is currently shut down. Our liquor license, health license, and basic business license have been revoked.
They were revoked because when the city decided to implement these mandates in December ’21, we did some soul-searching and decided that we weren’t going to participate with the mandates. The city’s response was swift and severe. And all of those items that I described there, those all happened within three weeks of the mandates happening.
Could we have complied? Maybe we could have complied, but I have to look myself in the mirror and like what I see. So we just didn’t. And I really, truly, remain hopeful and I have faith that The Big Board’s going to be reopened and the city’s going to do the right thing. But we didn’t, nor will we ever, participate in the government-sanctioned form of discrimination.
Bluey: Robert, let’s bring you into the conversation. You’ve stepped in from The Buckeye Institute to help Eric get through the situation. What is the current status? And really, what is at stake here with his case?
Robert Alt: Sure. First, just a little bit of a background of where we are now in terms of the regulations in D.C. As of Feb. 15, there’s no longer a vaccine mandate for restaurants. And as of the end of February, there’s no longer a mask mandate.
So, if you were to walk down the street today, you could walk into a restaurant, it would be open. They’re not going to check your vaccine card—at least there’s no legal requirement for them to do so. And there’s no legal requirement that you wear a mask in that restaurant. And yet The Big Board remains closed.
Mr. Flannery is that Navy veteran who was singled out simply because he spoke up and tweeted, “Everyone is welcome.” And they’re penalizing my client because he actually had the courage to say something.
Now, as to where things currently are, as Eric mentioned, his licenses remain suspended, at least the licenses that he would need to be able to operate. And so, as to his legal claims, D.C. has operated under a state of emergency now for two years. Two years—that’s no longer a state of emergency. That’s a full term of Congress.
And the complicating issue here is they have stacked emergency order on top of emergency order in such a way as to exceed the 90-day limit. And by doing so, the D.C. government has evaded the requirement under the Home Rule Charter that ensures Congress has the ability to conduct meaningful oversight over acts of the D.C. government.
Additionally, D.C. law actually specifies that during states of emergency, individuals who are aggrieved by agency actions do not have a right to appeal. They don’t have the ability to appeal. It functionally closes the courthouse doors.
And again, while that might seem, in some way, permissible for a 90-day emergency order, when you have stacked these in perpetuity for a full two years, the lack of any oversight by Congress, the lack of any meaningful access to the court denies the fundamental due process rights of my client.
So The Buckeye Institute has sent demand letters to the relevant agencies. We have filed a motion for reconsideration with regard to agency action. And indeed, the D.C. government is required to respond by tomorrow with regard to our motion for reconsideration. So, stay tuned, hopefully we’ll know more soon.
Bluey: Eric, can you explain what it was like when some official from the D.C. government presumably showed up at your establishment? Walk us through that situation. Robert mentioned that you have been tweeting and obviously, I think for your regular customers, they knew, but obviously, somebody must have ratted you out to the D.C. government for them to show up.
Flannery: Well, it was, to be fair, a tweet that I sent out that said everybody would be welcome at all times.
The city government came in very quickly. Within a day of my tweet they were there to inform me of the rules and regulations, and I treated them with dignity and respect and was very kind to the agents that came in. They came in again the next day, the day after, skipped a couple days because of snow and a holiday, came in again.
[The Alcoholic Beverage Regulation Administration], which is the D.C. alcohol regulation administration, they came in, in that three-week period, nine times. And on top of that, they sent in the Department of Health inspectors four times during that time period.
So I was not only dealing with the ABRA regulators, I was also dealing with the Department of Health regulators.
Bluey: Robert, he used the words “swift and severe,” based on what he just described. I mean, it certainly, I think, is an apt description. There must be other businesses that had a similar view as Eric on this. Why do you think they picked on him and targeted him so directly?
Alt: Well, if one simply looks at reports that you can find online, it seems like Eric was not the only business that, at the very least, wasn’t complying in a uniform fashion with regard to the vaccine mandate requirement. Eric just spoke out about it. And I think that is the fundamental difference, that he spoke out and therefore became a target because of his speech.
Bluey: Have you talked to other business owners, Eric, in the city who may be afraid to speak out as you did, but have similar views as to how they should treat their customers?
Flannery: … Yes. There are lots of businesses in Washington, D.C., who did not comply with these mandates. And obviously, I wouldn’t name them. But … I’ve been lucky enough to have the opportunity to meet a bunch of other wonderful bar owners. And there are a lot of them who agreed that these mandates weren’t the right thing to do.
Bluey: Let’s go back to the early days of COVID. What was it like for you and your staff to adjust to these restrictions that the mayor put on all businesses in the city, financially, for your customer base, and how did you adapt to that?
Flannery: When COVID first came in March 15, 2020, the mayor’s office said, “Hey, you have to move all your bar stools out of the restaurant and you have to have your tables 6 feet apart.” That order came out somewhere around midday. By 4 o’clock that afternoon, all my bar stools were in storage and all my tables were 6 feet apart.
Two days later, they changed the rules for us. And they said, “You can’t even have anybody inside.” And I said, “Wow.” I was talking with my brother and I was like, “I don’t think I want to go down there and be a carry-out operator, that’s not the fun.” And he just talked with me and he said, “You know what, Eric, why don’t you just go down there and try it?” And wow, if he wasn’t right, again. Our customers came in from everywhere.
We’re not very digitally-savvy company. You get to-go food from us by calling us on the phone and then we plug it into our computer and send it down and you come and pick it up. And the people from the neighborhood, they just kept coming. And there were people who would come every Friday—every Friday. I could set my clock by it, I was going to get a call from Brandon at 7:45 on Sunday night.
Bluey: Some in the news media, including The New York Times, have tried to brand your establishment as a conservative bar. I think you would take issue with that label. You serve everyone—you’ve said it here on this interview. Tell us about the customers and maybe some past experiences you’ve had that illustrate why you … welcome people regardless of their political views.
Flannery: I think the easiest way to talk about this is to talk about the two busiest days that we’ve ever had at The Big Board. And they were both equally busy and they occurred right after each other.
The first one was the inauguration of President [Donald] Trump. And the second one was the Women’s March the very next day. On both of those days, we had people inside The Big Board who were wearing Trump flags and “Make America Great Again” hats sitting next to people with pink hats on their heads. And they got along. They had fun. There [weren’t] any incidents. There wasn’t even so much as loud yelling.
And when I say those days were busy, what I mean is, for a very busy day for us, they were 150% more busy than one of those days. It doesn’t make sense to not cater to welcoming everybody.
Bluey: Robert, you have talked about how the District of Columbia has moved away from the mandates, the vaccine passport, and now the mask. What is the response that you’re hearing—if you’re hearing a response—when you raise this point that if the mandates are no longer in effect, Eric’s business should be able to reopen?
Alt: Well, as I said, we are in fact waiting. We filed a motion for reconsideration on that very basis, noting that the authority that they relied upon is no longer in force.
And when you think about it, I mean, the regulatory basis, if you’re trying to get him into compliance, if you walked into his restaurant today, of course it’s closed. But the fact that, if he’s not checking vaccine cards and if he’s not requiring masks, that’s in compliance with what the law requires today. And so there really doesn’t seem to be any regulatory purpose in keeping him closed.
Bluey: Have you thought about taking the argument to members of Congress? D.C. is unique in the sense that Congress does have some authority. Any response or reaction that you had from any of the members?
Alt: We actually just spoke on Capitol Hill, Eric and I, yesterday at an event that was arranged sort of corresponding with the State of the Union address by [House Minority Leader Kevin] McCarthy. And we specifically raised the issue that Congress has the unique authority with regard to oversight.
So, we have definitely raised those issues and I hope that Congress will in fact look into what’s going on here, because it’s not just that they’re trampling on Eric’s rights here. It’s that, in fact, they’re infringing on the requirements of the Home Rule Charter by entering into this perpetual state of emergency.
Ordinarily, when a piece of legislation passes from the D.C. Council, there’s a 30-day period in which Congress has the authority to overrule it by a joint resolution. That does not occur with regard to an emergency act, but the emergency act is limited to a 90-day period.
They have stacked these emergency orders, one on top of the other, in a way that has extended this state of emergency for more than two years, and has created a zone where Congress has not had any opportunity to have meaningful oversight over these regulations.
And it’s difficult to think of legislative or regulatory acts that D.C. could be engaged in that wouldn’t have more impact on the operation of Congress within the federal city.
Obviously, shutting down businesses, placing requirements upon who can enter those businesses, that impacts not just members, but people coming to do business in Washington, D.C., with Congress, with other federal agencies. And so, it simply makes sense that Congress should have the authority to oversee this under the Home Rule Charter.
Bluey: It certainly seems like it should. Now, just for clarity’s sake, even though the mandates have ended, is the emergency order still in effect?
Alt: My understanding, I think the emergency order is still in effect. … They’ve continued a series of extensions. I believe it’s in effect through mid-March, if I recall correctly.
Bluey: OK. And Eric, you’ve had some fairly prominent guests when The Big Board was open. Sen. Rand Paul lead a delegation from Congress there. What has it been like to be thrust into the spotlight like this over the course of the past couple of months?
Flannery: It’s certainly not what I expected to happen. I’ve most definitely appreciated the support of everybody who has wanted to help us and help us operate without these mandates being in effect.
The support from somebody with that kind of political power, it’s overwhelming, but we still, all of our other customers, all of the people who come in, that’s always been our bread and butter—the people who come in from our neighborhood, the people who are there to support us and [have] been supporting us for the last 10 years. And I’m really looking forward to being open again, when we can welcome them back into the restaurant.
Bluey: When you are able to reopen again, will it be as simple as calling the staff and telling them to come in the next day, or what does that actually look like in terms of informing your customers and getting the workforce back in place? How do you go about doing that operationally?
Flannery: It’s going to take a little bit of time. And what I mean is we had to, because we were shut down and shut down completely, we had to get rid of our inventory. So I will have to restock the kitchen. I will have to restock the bar. We’ll have to do all of our preparation work.
And obviously, there’s going to be some of the people who were working with me who have needed to find a place to make some money. And even though I paid them, at some point I’d run out of money and won’t be able to pay them, and they want to work.
So it’s going to be there, but I don’t know, 10 and a half years ago, I didn’t even know anything about opening up a restaurant and somehow we got it open. So I’m pretty sure we’ll get it done.
Bluey: And what have the last two years meant in terms of that loyal support? You talked about how the customers would come in and get the takeout. And you’ve also shared with The Daily Signal previously how people all across the country have written you letters of support. Just a closing word from you on what that means to hear from people like that.
Flannery: It’s incredibly amazing to hear from our customers and from the people around the country. It’s the thing that makes me want to get up and keep on fighting and keep doing this. They’re just fantastic people and I don’t have any better words than to say thank you very much. I’m overwhelmed. Thank you. Thank you.
Bluey: Well, Eric, thank you. And Robert, thank you for stepping in to help him lead this fight. We’ll certainly be praying for you and hoping that this resolves in a way that allows The Big Board to reopen and begin serving those customers once again, sooner rather than later.
Alt: Thank you so much.
Flannery: And thank you very much. Really appreciate you having us here.
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