| jleonard@newsobserver.com |
The North Carolina Court of Appeals ruled Tuesday that Gov. Roy Cooper’s decision to keep bars shut down during the COVID-19 pandemic violated the state constitution.
A panel of three Republican judges wrote that while Cooper had the authority to shut down some businesses in the interests of public health, his decision to begin reopening restaurants but not bars violated the rights of those business owners.
“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 court wrote.
Cooper’s office defended the lockdowns in a statement following the ruling.
“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,” Mary Scott Winstead, communications director for Cooper, said. “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 case began in 2020 after a group of nearly 200 bar owners sued Cooper for leaving them out of part of the state’s reopening plan, arguing that the distinction between bars and restaurants was arbitrary. --->READ MORE HERE
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| CJ photo by Maya Reagan |
Bar owners who sued Gov. Roy Cooper for shutting them down during the COVID-19 pandemic have won a partial victory at the state Court of Appeals. A unanimous appellate panel agreed the governor had violated bar owners’ rights to the fruits of their labor and equal protection of the laws.
At the same time, the Appeals Court rejected the bar owners’ argument that the shutdown amounted to an unconstitutional taking of their property. A taking would have required the state to provide the bar owners with just compensation. Appellate judges also rejected bar owners’ request for attorneys’ fees under the Public Records Act.
The decision reverses part of Wake County Superior Judge James Gale’s ruling. He decided the case entirely in Cooper’s favor in March 2022. The lawsuit will head back to a trial judge for further proceedings.
The governor issued an executive order shutting down all bars in North Carolina in March 2020. In May, a new executive order — No. 141 — allowed some type of bars to reopen with safety precautions. Private bars, including those involved in the lawsuit brought by the North Carolina Bar and Tavern Association, had to remain closed.
“Defendant relied on ‘science and data’ he claimed created a reasonable basis to distinguish between types of bars, thus letting some reopen while keeping others closed,” wrote Judge April Wood for the unanimous court. “Defendant’s ‘science and data’ tends to show that bars in general did present a heightened risk of COVID-19 transmission, as people normally gather, drink, and talk in bars of all sorts. We have considered the ‘science and data’ presented by Defendant to justify the distinction between closing some types of bars and not others, but this information does not support Defendant’s position, even if weconsider all such information to be true.”
“Some of the information did not exist at the time of Executive Order No. 141, so Defendant could not have relied on it,” Wood explained. “Most of the information is news articles, at best anecdotal reports of various incidents in different places around the world. None of the information addresses any differences in risk of COVID-19 transmission between Plaintiffs’ bars and the other types of bars allowed to reopen. For the reasons explained below, we have determined the trial court erred when it denied Plaintiffs’ summary judgment motion and dismissed Plaintiffs’ claims under N.C. Const. art. I, § 1 , the ‘fruits of labor clause,’ and for denial of equal protection under N.C. Const. art. I, § 19.”
Wood detailed the Appeals Court’s reasons for upholding the bar owners’ claim that Cooper violated their right to the enjoyment of the “fruits of their labor.”
“Our careful review of the Record does not reveal the existence of any scientific evidence demonstrating Plaintiffs’ bars, as opposed to the bars located in other establishments serving alcohol, posed a heightened risk at the time Executive Order No. 141 was issued,” she wrote. “Even if we assume the materials submitted by Defendant address higher risks of COVID-19 infections in locations where alcohol is served and people gather, these materials do not include any distinctions between different types of bars.” --->READ MORE HEREFollow links below to relevant/related stories and resources:
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