NC Appeals Court sets May 9 for bar owners’ case against Cooper’s COVID shutdown

(CJ photo by Maya Reagan)
  • The N.C. Court of Appeals has set May 9 as the date to consider bar owners' lawsuit seeking compensation for Gov. Roy Cooper's COVID-19 shutdown.
  • State lawyers argue a win for bar owners would open up state government to "unprecedented liability."

The N.C. Court of Appeals will consider next month a case involving bar owners’ challenge against Gov. Roy Cooper’s COVID-19 shutdown orders.

Chief Judge Donna Stroud and Judges April Wood and Jefferson Griffin, all Republicans, are scheduled to consider the case on May 9.

N.C. Bar and Tavern Association v. Cooper is one of 12 cases on the calendar that day for the three-judge panel. The case will not feature any oral arguments.

Bar owners seek compensation for COVID executive orders that shut down or limited their businesses for a year. They made their case in a brief filed in November 2022.

“The Emergency Management Act … provides that ‘compensation for property shall be only if the property was commandeered, seized, taken, condemned, or otherwise used in coping with an emergency, and this action was ordered by the Defendant.’ Appellants’ business operations were shut down or severely restricted … by Executive Orders issued by the Defendant pursuant to the EMA. The trial court erred in dismissing Appellants’ claims for statutory compensation,” wrote attorney Michael Tadych.

Cooper shut down many N.C. businesses in March 2020, in the early days of the COVID-19 pandemic. By May, the governor had eased restrictions “on most businesses, but not Appellants’ businesses,” according to the brief. Cooper and his staff distinguished “private bars” from other businesses that sell alcohol.

“The Defendant singled Appellants out for closure despite their bars being indistinguishable in operation and character from bars located in restaurants, hotels, wineries, distilleries, taprooms, brewpubs, breweries, private clubs, and eating establishments,” Tadych wrote.

After nearly 80 days of shutdowns, the bar owners initially filed suit in June 2020. Conditions changed again in October 2020, after the bars had been “closed involuntarily for 199 days,” according to the brief.

Even Cooper’s October 2020 order left the plaintiffs’ businesses “effectively closed.” Bars and taverns faced indoor and outdoor seating limitations that lasted through February 2021.

A trial judge dismissed the suit in March 2022.

“The North Carolina Constitution requires just compensation for the government’s taking of private property,” according to the brief. “The trial court found that the Plaintiffs’ rights to operate their businesses was a property right and that the Plaintiffs’ businesses were closed or severely restricted for 423 days by the Defendant’s Executive Orders. The trial court erred by dismissing Appellants’ constitutional claim for takings of their property interests.”

“The North Carolina Constitution provides that citizens of the state may not be denied the benefits of their labor by the government,” the brief added. “The trial court found that the Appellants’ ability to produce and benefit from their labors through the operation of their businesses was eliminated … by the Defendant’s Executive Orders. The trial court erred by dismissing Appellants’ constitutional claim for the violation of their right to produce and benefit from their labors.”

State government lawyers responded to the bar owners’ claims in February.

“Proposing novel and unsubstantiated legal theories, Plaintiffs ask this [Apppeals] Court to order the people of North Carolina to compensate them for private business losses sustained as a result of measures taken to protect the public at the outset of the COVID-19 pandemic,” wrote N.C. Senior Deputy Attorney General Amar Majmundar. “The trial court correctly dismissed Plaintiffs’ claims, joining courts across the nation that have unanimously rejected such claims.”

“Indeed, Plaintiffs do not identify a single case anywhere where similarly situated claims for compensation have prevailed,” Majmundar wrote. “That omission is telling. Nearly every state in the nation imposed the types of restrictions at issue here, leading to thousands of lawsuits across the country related to the pandemic. The types of claims made by Plaintiffs have not been successful and are simply untenable.”

“In addition to North Carolina, bars in Alabama, Arizona, California, Colorado, Connecticut, Florida, Hawaii, Indiana, Kentucky, Louisiana, Michigan, Ohio, Oregon, Pennsylvania, Tennessee, and Texas were all closed during the onset of COVID-19,” the state’s brief continued. “Those restrictions were based upon the most current scientific studies and public health data available at the time, which established that bars presented serious and disproportionate risks for the transmission of COVID-19, including numerous documented instances of ‘super-spreading events.’”

“These closures undoubtedly saved lives at a time when vaccinations and effective treatments were unavailable,” Majmundar wrote. “Against this backdrop, any reversal of the thorough and sound decision of the trial court is unwarranted.”

Majmundar argued that bar owners asked courts to “upend” decisions from the governor “by recognizing new constitutional claims for tailored compensation that would expose the State to unprecedented financial liability.”

“The negative effects of this intrusion would extend far beyond the pandemic response,” he wrote. “If Plaintiffs succeed here, state and local governments would face any conceivable claim alleging loss as a result of prophylactic measures taken to protect the public during a public health or safety emergency.”

“Whether evacuating in advance of a hurricane, cordoning off areas around fires or other hazards, or responding to countless other emergencies and threats to public health and safety, state and local government officials are obligated to take quick, decisive measures to protect their citizens,” the brief continued. “Plaintiffs’ theories would potentially subject them to crippling liability when they do so.”

There is no deadline for the Appeals Court panel to issue a ruling in the case.