NC Appeals Court rules Gov. Cooper erred in COVID-19 bar closures

The North Carolina Court of Appeals ruled Tuesday that Gov. Roy Cooper’s closure of certain bars, but not restaurants, in the early months of the pandemic was “irrational and arbitrary,” not based on data and science.

“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,” wrote Judge April C. Wood, a Republican. “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.”

Cooper issued an executive order early in the pandemic, on March 17, 2020, closing all bars in North Carolina. On May 20, 2020, he issued another executive order, allowing some — but not all — bars to reopen with specific safety precautions. Cooper’s attorneys said he’d relied on “science and data” to determine which types of bars should be allowed to open and which should remain closed, using research showing that bars presented a higher risk of COVID-19 transmission.

But Wood’s 39-page opinion, joined by Republican colleagues Judges Donna Stroud and Jefferson Griffin, who is also running for the state Supreme Court, said that Cooper did not submit any evidence that showed why members of the North Carolina  Bar and Tavern Association — the plaintiff in the lawsuit — would have been unable to comply with his executive order, when he allowed other types of bars to reopen under certain restrictions.

“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.”

Cooper wrote in the executive order that bars presented a greater risk to spreading COVID-19, “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.”

But Wood wrote in her ruling that Cooper didn’t have sufficient “science and data” at the time of the executive order to justify closing some bars and not others.

“Most of the information is news articles, at best anecdotal reports of various incidents in different places around the world,” Wood wrote. “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 that news reports cited by Cooper’s attorneys were not the same as scientific studies.

“‘Research’ such as these news articles could be conducted by private citizens utilizing Internet search engines,” Wood wrote. “In fact, many of the documents in the Record were gathered from Internet searches as evidenced by the tags and links at the bottom of the printed pages.”

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

Wood and her colleagues did not agree with every argument the Bar and Tavern Association made. The court ruled that the association’s members were not entitled to financial compensation under the Emergency Management Act because Cooper did not physically take their land or property; he merely prohibited them from using their land for the purpose of conducting their business. Wood wrote that what Cooper did was within the bounds of state law, and not within the parts of the statute the legislature determined would give someone a right to compensation.

“Clearly, the General Assembly considered which governmental actions would trigger a statutory right to compensation and employed language which encompassed certain specific actions while excluding others,” wrote Judge April C. Wood, a Republican. “Ordering mandatory business closures is not one of those actions which triggers a statutory right of compensation under the statute as it is currently written.”

Click here to read the court’s ruling in N.C. Bar and Tavern Association v. Cooper.