A Greenville bar owner heads to court this afternoon to seek permission to reopen. Her case hinges on whether Gov. Roy Cooper’s COVID-19 executive orders discriminate illegally and unconstitutionally against private bars.
“The vast majority of bars in North Carolina are open and serving patrons indoors,” according to the latest court filing from attorneys representing Crystal Waldron, owner of Greenville-based Club 519. “Bars in wineries, distilleries, breweries, taprooms, brewpubs, cideries, meaderies, private clubs, bottle shops, and wine shops, as well as bars in restaurants and eating establishments, are all serving patrons indoors under limited capacity restrictions and other safety protocol. It is only private bars that have been shuttered for nearly 8 months.”
If Waldron wins a preliminary injunction in her case against Cooper, private bars would no longer be treated differently in complying with state COVID-19 restrictions.
“Governor Cooper provides no evidence that private bars present a greater risk to the public than the many bars that are currently allowed to operate in North Carolina,” wrote Waldron’s attorney, Jessica Thompson. Thompson works for the nonprofit Pacific Legal Foundation. “Nor does the Governor provide any evidence that private bars could not implement the same health and safety precautions as other similarly situated businesses.”
Business Court Judge James Gale hears arguments in the case at 2 p.m. It’s not clear when Gale will issue a ruling.
In a 40-page memorandum supporting Cooper this week, state Special Deputy Attorney General Michael Wood emphasized COVID-19’s ongoing impact. “On the day the Plaintiffs filed their complaint [in December], 4,479 new cases of COVID-19 were confirmed in North Carolina, 3,001 people were in the hospital with COVID-19 on that day, and 61 people died as a result of their infections,” Wood wrote.
Cooper’s shutdown of private bars fit with other “science- and evidence-based decisions” linked to the pandemic, according to Wood’s brief. “The Governor made this decision not out of animus against bars, but because the best available scientific evidence indicates that bars are disproportionately large contributors to the risk of transmission of and infection with COVID-19.”
Keeping private bars shuttered while opening other alcohol-serving businesses tied into a legitimate phased reopening plan, Wood explained. It’s dubbed the “dimmer switch” approach.
Blocking Cooper’s orders now could cause harm that “would reverberate throughout the state in foreseeable and dangerous ways,” Wood argued. A spike in COVID-19 cases tied to reopened bars could “overwhelm the State’s healthcare systems.”
Thompson’s 19-page response to Cooper’s legal team emphasized the violation of private bar owners’ legal and constitutional rights. “One can take seriously the ongoing health risks posed by the virus while also following the State Constitution,” she wrote. “The available evidence does not justify suspending the North Carolina Constitution’s protections of individual liberty and promise of the separation of powers.”
The Club 519 team pointed to multiple ways in which Cooper’s shutdown of private bars violated legal and constitutional protections.
First, the Emergency Management Act powers Cooper used for his executive orders required “equitable and impartial” treatment. That provision applied both to people and businesses, Thompson argued.
“Governor Cooper’s assertion that the EMA permits discrimination against similarly situated businesses, but not people, would lead to absurd results,” she wrote. “It would mean the statute permits him to shutter a bakery that sells French items out of an animus towards the French or single out stores that sell religious items out of animus towards religion.”
Waldron’s case also targets Cooper’s argument that the state has an economic interest in allowing breweries and wineries to remain open as private bars remain closed. “To deny her the opportunity to reopen … for the admitted reason that her business does not contribute as much to the State’s [gross domestic product], hasn’t received loans and investments from the State, and doesn’t attract tourism from out of state, is to discriminate against her on the basis of her economic status.”
Beyond the Emergency Management Act’s provisions, Cooper’s orders violate the state constitution, Thompson argued. That document guarantees people the right to enjoy the “fruits of their labor.” It also requires equal protection under the laws.
“The only reasons the Governor puts forward for distinguishing between some of the classes of businesses now allowed to open are (1) there are fewer breweries and wineries than private bars, and (2) the Governor favors breweries and wineries because of their economic contribution to the state,” Thompson wrote. “The former is irrelevant, and the latter is illegitimate.”
“[E]conomic favoritism is exactly what equal protection is designed to protect against.”
Club 519’s legal brief also asserted that Cooper violated the constitution’s separation-of-powers requirements. He vetoed multiple bills from the General Assembly that would have allowed private bars to reopen.
The governor has made “legislative judgments” during the pandemic, “weighing the social value of different businesses and deciding which businesses should be allowed to open and under what conditions,” Thompson wrote.
“[T]he Separation of Powers Clause precludes the Governor from exercising a continued and unqualified power to micromanage the State’s economy unless the General Assembly is enabled to reassert its exclusive authority to make legislative judgments.”
Outside of arguments involving health, safety, and constitutional rights, the case files also feature social media citations. Cooper’s legal team enlisted a state Justice Department paralegal to “review Plaintiffs’ web presence and social media accounts that are publicly accessible.”
Wood used that review to bolster his case. “There is cause for skepticism about Plaintiff’s ability or willingness to enforce safety guidance,” he wrote. “[T]he bar’s public Twitter profile features numerous anti-mask tweets, as well as images and posts celebrating businesses ‘defying orders’ and encouraging others to do the same.”
“The governor simply cannot assume that every bar patron will perfectly follow safety guidelines and that every bar will perfectly enforce them,” Wood concludes. “That will not happen.”
In response, Thompson cited a different Jan. 30 tweet from the Club 519 account. It responded to another user’s suggestion that Club 519 open its doors in violation of the shutdown.
“I think we have a good chance of winning in court, which would help businesses across the state,” Club 519 tweeted. “Gonna stand pat for a little while longer.”