RALEIGH — The Greenville area club which filed suit against Gov. Roy Cooper over his closure of private bars and clubs during the pandemic will see their case head to a three-judge panel.
Originally filed on Dec. 21, the lawsuit against Cooper was filed by Pacific Legal Foundation on behalf of Crystal and Kenneth Waldron and their business, Club 519. The main argument of the Waldron v. Cooper complaint was the governor’s “arbitrary treatment of bars as unconstitutional under the state and federal constitutions.”
In early March, Pacific Legal Foundation filed an amended complaint alleging the governor had overstepped his constitutional authority using the Emergency Management Act (EMA) to close businesses and impose other restrictions.
The amended complaint is what’s known as a facial challenge, which attacks the constitutionality of a law as vague or overbroad. North Carolina statute requires facial challenges to be determined by a three-judge panel and the amended complaint asked for just that. On March 26, Superior Court Judge James Gale issued a transfer order for the case. No date has been set yet for the three-judge panel to convene.
“After over a year of unilateral executive micromanagement dictating the closing of businesses and the conditions of re-opening, Crystal Waldron and Club 519 look forward to presenting the constitutional deficiencies in the Emergency Management Act to the three-judge panel,” said Jessica Thompson, one of the Pacific Legal Foundation attorneys on the case. “This panel will be the first to decide whether the Governor’s powers under the Emergency Management Act are unconstitutional—an issue of great importance to all North Carolinians.”
Not long after the lawsuit was amended, the Emergency Powers Accountability Act was filed by House members at the General Assembly. The bill will amend the Emergency Powers Act by requiring the governor to seek the concurrence of the Council of State when issuing a statewide declaration of emergency lasting beyond 30 days.
Cooper’s recent alterations to his COVID-19 restrictions contained in executive order 195 permit bars to reopen for indoor service, but are restricted to 30% of fire capacity per room or 250 people in a given space, whichever is less. These alterations to COVID-19 restrictions are not much help and continue to highlight the disparate treatment of bars according to Thompson.
“Less than a week after our first hearing in February, Gov. Cooper announced his executive order would allow private bars to re-open indoors at limited capacity. Unfortunately, Gov. Cooper’s orders still treat private bars differently from other bars open across the State,” Thompson said. “Worse yet, there’s nothing to prevent the Governor from closing private bars tomorrow, while allowing other bars to remain open. The Governor’s ever-changing executive orders often evade judicial review.”
Executive order 195 singles out bars and “night spots” with claims those venues have a higher risk because “people tend to mingle” when they drink and are in “close physical contact.” To date, the Cooper administration has not offered any data to support the higher risk claim
Private bars and clubs are the only industry that Cooper has effectively kept closed via executive order since the onset of the pandemic in March 2020.
As the state shifted into “Phase 2.5” last September, the N.C. Bar and Tavern Association said that 85% of establishments in North Carolina with bars on their premises had been allowed to reopen, but 1,063 private bars were singled out and kept closed under Cooper’s orders. Those closures remained in place even as “Phase 3” was announced a month later.
Bars and clubs were hit with an additional impediment when on Dec. 8 Cooper announced a statewide curfew barring nonessential activities during the hours of 10:00 p.m. and 5:00 a.m. and a ban on alcohol sales after 9 p.m. The governor would extend the curfew and alcohol sales ban twice, finally lifting those restrictions around three months later on Feb. 26.