NC Court of Appeals: Cooper violated state constitution with bar closures

The opinion stated the governor applied different reopening standards to similar businesses during the pandemic

An employee at White Street Brewing Company in Wake Forest fills a "crowler" can of beer in March 2020. (Allen G. Breed / AP Photo)

RALEIGH — A recent opinion by the North Carolina Court of Appeals says Gov. Roy Cooper’s pandemic orders related to bar closures violated the state’s “equal protection” rights under Article I of the North Carolina Constitution.

Judge April Wood delivered the decision, with Judges Donna Stroud and Jefferson Griffin concurring.

“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 April 16 opinion was not a cut-and-dried ruling as it both affirmed and reversed portions of the trial court’s ruling.

While the court ruled against the North Carolina Bar and Tavern Association’s claim for financial compensation that includes attorney fees, it upheld its claim that Cooper violated the association’s right to equal protection under the law by closing bars through two executive orders.

Executive Order No. 118 shut down all bars selling “alcoholic beverages for onsite consumption.”

Executive Order No. 141 singled out private bars to remain closed, treating those types of bars differently from other establishments serving alcohol.

Cooper’s attorneys argued the governor based his decisions on “science and data” when determining what types of bars could operate.

The Court of Appeals disagreed and found that Cooper’s decision lacked scientific evidence and was based mainly on news articles and reports of incidents worldwide.

“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,” Woods wrote.

Examples used by Cooper’s attorneys as proof private bars should stay closed were rejected in the opinion.

“Defendant cannot reasonably rely on his own assertion within an executive order as though it were itself a scientific study,” wrote Woods.

“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,” Woods wrote. “Defendant has not demonstrated any logic in the complete closure of bars for on-premises service when the same measures that allowed other types of bars, such as hotel and restaurant bars, to open could have been applied to the operation of those businesses.”

The Court of Appeals’ opinion remanded the case back to the trial court for further proceedings.

About A.P. Dillon 1293 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_