A three-judge panel of the N.C. Court of Appeals has sent a lawsuit targeting North Carolina’s COVID-19 restrictions on bars back to the trial court, saying elements of a Gov. Roy Cooper executive order were in violation of the state Constitution.
Cooper’s executive order No. 141 prohibited bars from serving alcoholic beverages for onsite consumption. The governor said allowing such consumption posed “greater risks of the spread of COVID-19.”
The N.C. Bar and Tavern Association filed a lawsuit in June 2020 that alleged Cooper’s order and his subsequent phasing out of those restrictions held some bars to tighter restrictions than others.
The enhanced restrictions appeared to have been centered on establishments where alcoholic beverages are served and patrons typically would linger for an hour or more.
The all-Republican appeals panel ruled April 16 that some bars were treated differently than others during the first year of COVID-19, thus violating the “fruits of labor clause” of the bar owners whose establishment were ordered closed.
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Fruits of labor typically is defined as being able to receive appropriate compensation for work. For the affected bars, it means the ability to generate revenue, particularly from alcohol sales, from their operations.
However, the panel determined a trial court properly dismissed several plaintiff claims seeking compensation from state government.
There were at least 29,059 confirmed COVID-19 related deaths in North Carolina, including at least 997 in Forsyth County, when the COVID-19 dashboard updates were halted in May 2023.
“The balanced and necessary actions the state took in consultation with health officials early in the pandemic followed the law, saved lives and saved jobs,” said Mary Scott, senior deputy communications director for Cooper.
The panel — comprised of April Wood, who wrote the opinion, Jefferson Griffin and Donna Stroud — said the Cooper administration and the N.C. Department of Health and Human Services’ “science and data tends to show that bars in general did present a heightened risk of COVID-19 transmission, as people normally gather, drink and talk in bars of all sorts.”
“None of the information addresses any differences in risk of COVID-19 transmission being plaintiffs’ bars and other types of bars allowed to reopen,” according to Wood’s opinion.
Mark Hall, a professor of law and public health at Wake Forest University, said the panel’s opinion “shows a surprising reluctance to defer to public health officials in the midst of a national emergency.”
“It appears to require public health officials to back up their expert professional judgments in those circumstances with scientific studies that have been published in peer-reviewed journals – something that simply is not possible in a realistic time frame during an unexpected emergency.”
Hall said that “I am concerned that holding public health officials to such an unrealistic exacting standard will make it more difficult for them to protect the public’s health in the event of future emergency situations.”
In terms of the fruits of labor claims, the panel said “the unequal treatment of plaintiffs had the effect of denying their fundamental right to earn a living by the continued operation of their businesses.”
Both the Cooper administration and the association can appeal the appellate court’s decision to the N.C. Supreme Court, which has a 5-2 Republican margin.
The association could not be reached for comment on the ruling.
“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,” Scott said.
“The governor’s office will continue to work to maintain the ability of health officials to respond effectively should deadly outbreaks and emergencies occur in the future.”
Randy Brechbiel, communications advisor for N.C. Senate leader Phil Berger, R-Rockingham, said that “for all the talk we hear from the governor about his support of small businesses, he wasn’t a friend when he shut down North Carolina’s economy.”
Berger was among the most vocal critics, along with the six Republicans on the 10-member Council of State, Cooper’s executive orders during the pandemic.
“Bar owners, for no good reason, got hung out to dry, and it’s a shame the governor’s team fought this decision every step of the way,” Brechbiel said.
Complaint background
When Cooper issued executive order No. 141 beginning on May 22, 2020 — he chose to keep closed several businesses that had been projected to reopen under similar 50% capacity restrictions to restaurants and personal-care services.
Those include bars, night clubs, public playgrounds, gyms and fitness centers, movie theaters, bowling alleys, bingo parlors and museums.
However, the order allowed retail beverage venues to sell beer, wine and alcohol for off-site consumption only, which some bars participated in during the reopening phases. The order exempted production operations at breweries, wineries and distilleries from closure.
The association said they were not challenging the initial closure of all bars, but claimed their members were harmed by the exemptions that did not allow for their full services.
They sought damages from the state because the Cooper administration had “commandeered, seized, taken, condemned or otherwise used (their property) in coping with an emergency” via the state Emergency Management Act.”
The panel agreed with the trial court that there was no evidence that the Cooper administration had violated their state constitutional rights by those actions.
The panel summed up its opinion by saying “it is illogical and arbitrary to attempt to achieve the defendant’s stated health outcomes by applying different reopening standards to similarly situated businesses that could have complied with those standards.”
“In other words, if restaurants serving alcohol could operate at 50% 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 the same with alcohol service.”
Future ramifications
Even though bars have been fully reopened from COVID-19 restrictions for nearly two years, the complaint from the N.C. Bar and Tavern Association has potential ramifications for a governor’s response to a future public-health crisis or pandemic.
During most of the first 18-24 months of the pandemic, a tug-of-war existed between Republican legislative leaders pushing to reopen public venues through legislation and the Cooper administration’s Department of Health and Human Services citing heightened public-health risks in opposing premature easing of restrictions.
Cooper vetoed successfully several Republican reopening bills in 2021 and 2022 while the GOP lacked super-majorities in both chambers.
“This is the latest North Carolina court decision that relies in part on a distinctive clause in the North Carolina Constitution guaranteeing to all persons ‘the enjoyment of the fruits of their own labor,’ a clause that does not have any parallel in the U.S. Constitution,” said John Dinan, a political science professor at Wake Forest University.
Dinan stressed that the panel’s ruling “is a limited decision that does not cast doubt on the validity of most bar-closing orders, but focuses on whether certain bars were treated differently from others when it came time to reopen them and allows for further scrutiny of those decisions by a lower-court judge.”