A federal appeals court has ruled that North Carolina Gov. Roy Cooper’s COVID-19 pandemic regulations, which closed standalone bars while allowing restaurants with bars to remain open, were unconstitutional under the state’s laws. The judges rejected the governor’s argument that the measures were supported by “science and data.”
The state Court of Appeals panel issued a unanimous opinion on Tuesday, finding that the trial judge erred when dismissing all claims against the Democrat governor by the North Carolina Bar and Tavern Association and private bars.
In the early days of the pandemic, Mr. Cooper issued an executive order closing all bars, including those in restaurants. He later issued another order that allowed only the bars within restaurants to reopen.
These orders relied on “science and data” that the governor “claimed created a reasonable basis to distinguish between types of bars, thus letting some reopen while keeping others closed,” according to Judge April Wood, who wrote the opinion by the Court of Appeals.
The group of barkeeps had argued that the governor’s order infringed on their constitutional rights to make a living and for equal treatment. But a trial judge, Superior Court Judge James Gale, found against the association of bar owners.
The governor’s executive order had allowed the reopening of some restaurants with bars, albeit with limited capacity. However, the plaintiff’s bars were not allowed to reopen under the same rules, according to the opinion.
Judge Wood wrote that the association and bars in the lawsuit were subjected to unequal treatment that was “illogical and not rationally related” to the governor’s stated goal of slowing the virus’ spread.
Judges Swipe at ‘Science and Data’
“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 we consider all such information to be true,” Judge Wood wrote.According to the opinion, the governor submitted news articles and “anecdotal reports” to support his claims of his orders being backed by “science and data.”
But “some of the information did not exist at the time” the executive order was issued, the judge noted. “So Defendant could not have relied on it.”
“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,” Judge Wood wrote.
Mr. Cooper issued a series of orders starting in March 2020 that closed all bars, including those within restaurants. Over the subsequent months, bars remained closed while restaurants and breweries were allowed to serve alcohol during specific hours.
Executive Orders
In his May 2020 order, Mr. Cooper stated that bars posed “greater risks of the spread of COVID-19,” attributing this in part to the business model involving people “remaining in a confined indoor space over a sustained period.”However, the bar owners contended that they were equally capable of adhering to reduced capacity, social distancing, and other restrictions.
At the time of issuing the orders, Mr. Cooper asserted that the decision to keep bars closed was grounded in “data and science” and informed by “daily briefings from doctors and healthcare experts,” as per the opinion.
Mr. Cooper’s state attorneys submitted news articles, a scientific study, and another executive order to justify the governor’s actions in limiting bar operations. However, according to Judge Wood, these submissions “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.”
Court of Appeals Judges Donna Stroud and Jefferson Griffin concurred with her opinion, which identified two constitutional violations. The judges are registered Republicans.
Bars were permitted to serve alcoholic beverages in outdoor seating areas later in 2020, with subsequent time limits imposed. All restrictions on bars were lifted in May 2021.
The group of barkeeps celebrated the ruling. If upheld, the case will return to the trial court to decide on monetary damages the state may owe them.
“We never asked for special treatment, only equal treatment,” association President Zack Medford said in a news release. “The governor’s decision forced many of these bars to eventually close permanently. Today’s ruling makes it clear that the governor was wrong and now the state needs to make it right.”
A spokesperson for Mr. Cooper defended North Carolina’s pandemic response measures following the appeal’s court finding.
“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,” spokesperson Mary Scott Winstead said in a statement.
She said the governor’s measures came after consultation with health officials, complied with the law, and saved lives and jobs.
Recently, the North Carolina governor has faced lawsuits over his executive orders early in the pandemic. Trial courts have largely affirmed the governor’s executive orders, but appeals courts have favored plaintiffs.
Last September, a majority opinion written by Judge Wood allowed litigation filed by several barkeeps to go to trial in another case.
Another case about whether a lawsuit against North Carolina’s health secretary could go ahead was also heard in the state Supreme Court. That case was brought by the owners of a racetrack that was shuttered for not complying with rules on gathering limits the governor set in 2020. The justices have yet to rule in the Ace Speedway case.
