Governor's pandemic rules for bars violated North Carolina Constitution, appeals court says

North Carolina Gov. Roy Cooper's orders during the COVID-19 pandemic that directed standalone bars to remain shuttered for safety while restaurants that serve alcohol got to reopen were “illogical” and violated the state constitution, an appeals court ruled Tuesday.

A state Court of Appeals panel declared unanimously that a trial judge erred when he rejected claims by the North Carolina Bar and Tavern Association and private bars that their constitutional rights to earn a living and for equal treatment were violated with the Democratic governor's executive orders.

It was “arbitrary and capricious” to allow some restaurants with bars to reopen with limited capacity while the plaintiffs' bars weren't allowed to reopen in the same way, Court of Appeals Judge April Wood wrote in the panel's opinion vacating parts of Superior Court Judge James Gale's decision. 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, Wood said.

A series of orders issued by Cooper starting in March 2020 closed all bars, including those in restaurants. Within a few months, bars had to remain closed, but restaurants and breweries could serve alcohol during certain hours. That's when the association and over 185 entities that owned or operated private bars sued.

Cooper’s May 2020 order stated that bars presented “greater risks of the spread of COVID-19” in part because the business model has people “remaining in a confined indoor space over a sustained period.” But the bar owners said they were equally capable of complying with reduced capacity, social distancing and other restrictions.

At the time of the orders, Cooper said the decision to keep bars closed was based on “data and science” and “daily briefings from doctors and healthcare experts,” according to the opinion.

Cooper's state attorneys provided some news articles, a scientific study and another executive order to support the governor's decisions in restricting bar operations, but according to Wood they “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 joined in her opinion that found two constitutional violations. The judges are registered Republicans.

Later in 2020, bars could serve alcoholic drinks in outdoor seating, with time limits later added. All temporary restrictions on bars were lifted in May 2021.

Cooper spokesperson Mary Scott Winstead defended the state's response to COVID-19 early in the pandemic, saying it consulted with health officials, complied with the law and saved lives and jobs.

“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,” Winstead said in an email. She didn’t respond to a question about whether Cooper would ask the state Supreme Court to formally review the ruling.

The association celebrated the ruling, which if upheld would return the case to trial court to decide what monetary damages, if any, the state owes the bar owners.

“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.”

Cooper was the subject of several lawsuits challenging his COVID-19 actions early in the pandemic. The governor was largely successful in court, with judges often affirming his emergency powers. Recently, however, appeals courts have favored plaintiffs.

Last September, Wood wrote the majority opinion in another case saying that similar litigation filed by several bars and their owners could go to trial. The state Supreme Court also heard arguments in November over whether a lawsuit could continue against the state's health secretary by the owners of a racetrack shuttered temporarily because it wasn't complying with gathering limits set by Cooper in 2020. The justices have yet to rule in the Ace Speedway case.