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Thursday, May 30, 2024

Appeals court: Cooper violated state constitution by ‘arbitrarily’ extending Covid-19 shutdown on private bars

In North Carolina, three Republican judges with the North Carolina Court of Appeals have ruled Gov. Roy Cooper’s decision to mandate private bars to close longer than other food and drink establishments at the height of the pandemic was made “arbitrarily” and without sufficient scientific evidence. (Port City Daily/File)

NORTH CAROLINA — Though the world has moved on from the lethal health threat of the Covid-19 virus, its aftereffects still linger in other ways.

READ MORE: Wilmington-area bar owners wrangle with Governor Cooper’s new Phase 3 guidelines

In North Carolina, three Republican judges with the state Court of Appeals have ruled Gov. Roy Cooper’s decision to mandate private bars close longer than other food and drink establishments at the height of the pandemic was made “arbitrarily” and without sufficient scientific evidence. Thus Judges April Wood, Donna Stroud and Jefferson Griffin state North Carolina’s top leader violated the state constitution.

The appeal for North Carolina Bar & Tavern Association v. Roy A. Cooper was ruled on Wednesday, April 16, in Wake County with the judges remanding the case to trial court. The plaintiffs’ summary judgment motion was originally denied and claims dismissed in March 2022. 

“The unequal treatment of Plaintiffs had the effect of denying their fundamental right to earn a living by the continued operation of their businesses,” the judges determined.

The association filed the lawsuit after the governor excluded private bars from his phased-in approach to reopening certain businesses after stay-at-home orders shuttered non-essential operations in March 2020. By May, the governor allowed restaurants, breweries and wineries to open at limited capacity, but mandated other businesses, such as gyms, churches and private bars, remain closed.

“Why is drinking in a bar or tavern more dangerous than drinking that same beer in a restaurant bar or hotel bar or brewery?” Zack Medford, owner of Coglins and soon-to-open Tap Yard in Wilmington, asked rhetorically. 

Medford led the charge in the lawsuit and started the North Carolina Bar & Tavern Association in direct response to the Covid-19 shutdowns, in an effort to lobby for a fair shake. More than 150 bar owners joined the cause.

“The government reopened over 6,000 of these establishments and kept a small percentage of us closed because we didn’t serve food,” Medford said, adding they were not seeking special treatment.

Cooper eventually allowed bars with outdoor spaces only to open at 30% capacity or up to 100 patrons — whichever was less — in October 2020. It wasn’t until February 2021 that all bars reopened, still at limited capacity. The three judges wrote in the case it was more than “seven months delayed.”

Medford told Port City Daily Tuesday he owned four bars in Raleigh in March 2020; all of them closed by the end of 2021.

“We’re talking multi-millions of dollars in revenue alone,” he said of the financial loss. “Hundreds of bar owners across the state have lost everything and those of us that managed to keep something alive, we’re all up to our ears in debt. So we’re excited and celebrating this victory, but it is also bittersweet just because of how much we lost.”

Cooper explained at the time the bar business’ “very nature presents greater risks of the spread of Covid-19,” due to “people traditionally interacting in that space in a way that would spread” the virus. Cooper added the business model is based on the confinement of people, usually indoors, for longer periods of time, according to the suit.

The bar owners filed in June 2020 for the governor unfairly singling them out when restaurants, breweries and wineries also have people eating, drinking and congregating. They at first sought a temporary restraining order against Cooper’s executive order and asked him to allow for private bars to open sooner. The trial court denied the restraining order and the attorney general’s office filed a motion to dismiss.

However the bar association, represented by Stevens Martin Vaughn & Tadych, amended its complaint and filed again. This time it asked for six causes of action violating the North Carolina Constitution. 

The suit claimed relief for: 

  1. A right to earn a living
  2. A right to equal protection pursuant
  3. The governor taking the bar owners’ properties
  4. Alleged violation of the monopolies clause
  5. Compensation under N.C. Gen. Stat. § 166A-19.73 for alleged taking or use of bar owners’ property
  6. Award for alleged violation of the Public Records Act

The attorney general’s office, representing the governor, motioned to dismiss all claims in November 2021, but lawyers for the bar and tavern association submitted a partial summary judgment, to consider four of the six claims. Their lawyers submitted one, three, five and six to be used in a pre-trial to determine what can be brought forth in the case.

This, too, was denied in March 2022 and appealed by the association the following month before being ruled on this week.

According to Wood, the trial court erred in its dismissal and denial of equal protection of laws under the North Carolina Constitution. 

“The trial court did not directly address Plaintiffs’ equal protection claim. Rather, it appeared to address all their constitutional claims together,” she wrote.

Though the three appeals court judges dismissed most claims, they concluded the right to earn a living, particularly under the fruits of labor clause, was substantiated.

According to Medford, that was the claim most important to the association members. He confirmed the group is seeking financial restitution. 

“Unfortunately, what’s done is done,” he said. “We can’t ask the court to go back in time and give these bars a fair shot at staying in business, like the governor gave to the restaurants. But we can ask for money to help make some of these bar owners whole again or at least close as we possibly can.”

Medford was clear no one in the bar association was saying the governor didn’t have the power to enforce safety among the public. It’s how the power was executed in the reopening of the state that presented the issue.

In the second amended complaint, the bar association noted “some period of closure may have been reasonable and necessary.” They continue to argue “reasonableness and necessity ended” when Cooper allowed some restaurants and bars to open with proper distancing measures for on-site consumption, while others were shuttered. 

“We agree,” Wood wrote of her fellow judges. 

The lawsuit adds the bar owners were “equally capable” of ensuring measures like reduced capacity, increased distancing and strengthened sanitation as businesses allowed to open were permitted.

“In other words, if restaurants serving alcohol could operate at fifty percent capacity and keep groups six feet apart with both food and alcohol at the customers’ tables, Defendant has failed to present any forecast of evidence of any reason bars would not be able to do the same with alcohol service,” Wood continued.

The judges said the governor provided no science to show one bar is safer than another. Instead, they said the data consisted of “news articles, at best anecdotal reports of various incidents in different places worldwide.” 

Cooper’s office turned over a Washington Post piece, an NPR opinion piece and one from a news source in Louisiana, none of which are purported “scientific studies,” the lawsuit notes. 

Though one scientific study was included, it did not differentiate private bars from other bar types as being more pervasive in Covid-19 spread. The study was also dated Sept. 28, 2020, after Cooper made the decision to keep private bars closed, meaning the data wasn’t relevant at the time of his phased-in approach to opening businesses in North Carolina.

Port City Daily reached out to the governor’s office for response; its spokesperson Mary Scott Winstead provided the following statement:

“The balanced and necessary actions the state took in consultation with health officials early in the pandemic followed the law, saved lives and saved jobs. When this action was taken almost four years ago, hospitals were overflowing, thousands of people were dying, protective equipment was in short supply and vaccines and treatments were nonexistent. The Governor’s Office will continue to work to maintain the ability of health officials to respond effectively should deadly outbreaks and emergencies occur in the future.”

A similar lawsuit filed by the North Carolina Bar Owners Association, a separate group, has been submitted to the state Supreme Court, which Cooper has appealed.

The bar and tavern lawsuit is below with Judge Wood’s notes from April 16:

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Shea Carver
Shea Carver
Shea Carver is the editor in chief at Port City Daily. A UNCW alumna, Shea worked in the print media business in Wilmington for 22 years before joining the PCD team in October 2020. She specializes in arts coverage — music, film, literature, theatre — the dining scene, and can often be tapped on where to go, what to do and who to see in Wilmington. When she isn’t hanging with her pup, Shadow Wolf, tending the garden or spinning vinyl, she’s attending concerts and live theater.

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