RALEIGH — The North Carolina Court of Appeals has affirmed a lower court’s denial of a motion by Gov. Roy Cooper and legislative leaders to dismiss a lawsuit brought by a group of bar owners impacted by Cooper’s COVID-19 lockdown policies.
“We hold any alleged failure on the part of Plaintiffs to seek injunctive relief prior to damages does not bar their claims at the pleading stage under the theory of sovereign immunity,” Judge April Wood wrote in the ruling. “… “We affirm the trial court’s denial of Defendants’ Motion to Dismiss.”
Joining Wood in the majority of the three-judge panel was Judge Fred Gore. Democrat Judge John Arrowood dissented. In his dissent, Arrowood said, “Curtailing the ability of our Governor to issue executive orders during a state of emergency sets a deadly precedent that will prove to have grave consequences in the future.”
During the pandemic, Cooper kept bars closed far longer than any other type of business in the state, leading to the lawsuit by a coalition of bar owners led by Tiffany Howell.
The case, Howell v. Cooper, was first filed by various bar owners on Dec. 22, 2020, citing the governor’s lockdown having caused “financial damages due to the closing of their respective businesses, or the severe restrictions placed on their respective businesses.” The lawsuit contained five causes of action, most of which are still intact as of the Court of Appeals ruling.
The motion to dismiss the case has been winding its way through the courts since January 2021. After an amended complaint adding Senate Leader Phil Berger (R-Eden) and House Speaker Tim Moore (R-Kings Mountain) as defendants was filed in May 2021, Cooper and the state filed a motion to dismiss in July.
A trial court denied the motion to dismiss the plaintiffs’ complaint on Feb. 16, 2022. Part of the complaint was transferred to a three-judge panel in Superior Court.
The lawsuit argued the governor’s orders with regard to bars violated a constitutional right for a person to work and earn a living, and cited the differential treatment of bars by Cooper.
“Restaurants, private clubs, breweries, wineries, and distilleries have been allowed to open and operate for onsite indoor consumption of alcohol, while bars have been ordered to close or have their businesses severely limited by draconian restrictions that make the operation of bars unprofitable,” the lawsuit stated.
The bar owners’ complaint was the second lawsuit filed on behalf of a bar or club. In December, Pacific Legal Foundation filed a lawsuit on behalf of Club 519 targeting the disparate treatment of private bars in the governor’s orders versus other similar businesses.
