Court finds North Carolina Gov. Roy Cooper violated constitutional rights of bars over ‘different reopening standards’ during pandemic

The above video posted on May, 20, 2020, shows Gov. Cooper discussing Phase 2 of reopening during a press conference amid the COVID-19 pandemic.

(WGHP) — The North Carolina Court of Appeals ruled on Tuesday that Gov. Roy Cooper’s continued closure of some bars but not of restaurants in 2020 during the COVID-19 pandemic was “irrational” and not based on “science and data.”

On Tuesday, the North Carolina Court of Appeals issued a ruling in the North Carolina Bar and Tavern Association’s case against Gov. Roy Cooper. The court ruled that Cooper “violated” the association’s right to “equal protection” under the law, a right afforded in Article I of the North Carolina Constitution.

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On March 17, 2020, Cooper issued Executive Order No. 118 which closed all bars, including those inside restaurants.

A couple months later, on May 20, 2020, Cooper issued Executive Order No. 141 which allowed some types of bars to reopen with specific safety precautions in place but required private bars to stay closed.

Executive Order No. 141 states: “[B]y their very nature, [bars] present greater risks of the spread of COVID-19. These greater risks are due to factors such as people traditionally interacting in that space in a way that would spread COVID-19 …. or a business model that involves customers or attendees remaining in a confined indoor space over a sustained period.”

Cooper’s attorneys said he based his decision on “science and data” when determining which types of bars would be closed.

“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,” Judge April C. Wood wrote in a 39-page opinion. “Overall, the articles and data submitted by Defendant entirely fail to address any differences in the risk of spread of COVID-19 between the bars he allowed to reopen and Plaintiffs’ bars which remained closed.”

Wood claims Cooper based his decisions on news articles and reports of various incidents 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,” Wood wrote.

According to Wood, Cooper did not submit evidence detailing why the plaintiff in the lawsuit, the North Carolina Bar and Tavern Association, could not have reopened under the same requirements under which other establishments serving alcohol were allowed to reopen as part of Executive Order No. 141.

“It is illogical and arbitrary to attempt to achieve Defendant’s stated health outcomes by applying different reopening standards to similarly situated businesses that could have complied with those standards,” Wood wrote. “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.”

The court ruled that the Bar and Tavern Association members were not entitled to financial compensation under the Emergency Management Act since their land or property was not physically taken. The property, under the executive order, could not be used for conducting business.

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Wood wrote that Cooper’s actions did not violate state law and were not encompassed by the sections of the statute legislators decided would provide a right to financial compensation.

“Defendant did not commit a ‘taking’ of Plaintiffs’ property under our constitution which would have entitled them to recovery for an unconstitutional taking,” Wood wrote. “However, we hold the trial court erred in denying Plaintiffs’ partial motion for summary judgment for liability as to the fruits of their labor and equal protection claims. We affirm the trial court’s determination that Plaintiffs were not entitled to an award of attorneys’ fees under the Public Records Act.”

The case was sent back to the trial court for further proceedings.

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