Bars suing over Cooper’s COVID shutdown rely on Ace Speedway precedent | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Bar owners seeking money from the state because of forced COVID-19 shutdowns are turning to a recent N.C. Appeals Court decision for support. A brief filed Monday on behalf of the bar owners repeatedly cites the court's ruling favoring racetrack owners in a separate COVID shutdown dispute.

    Attorney Chuck Kitchen represents plaintiffs in both cases.

    In Howell v. Cooper, bar owners ask the Court of Appeals to affirm a trial judge's ruling allowing their case to move forward. Seventeen plaintiffs seek compensation from the state for forced shutdowns of their bars during the pandemic.

    Kitchen's latest brief reminds appellate judges that Gov. Roy Cooper ordered all bars to close in March 2020.

    "Numerous executive orders were issued by Cooper extending the ordered closure of bars," Kitchen wrote. "While bars were allowed to partially reopen February 26, 2021, there was not a full reopening of the bars until May 14, 2021. Far from being a temporary measure, bars owned and operated by the Plaintiffs-Appellees were ordered closed in whole or in part for a period of 14 months."

    Most plaintiffs in the current case took part in an unsuccessful court battle to win a preliminary injunction against Cooper's shutdown. Now they seek compensation for lost business.

    "The trial court properly denied the State's Motion to Dismiss based on sovereign immunity," Kitchen wrote. "This Court recently considered in a case involving an order of abatement whether a claim of unconstitutionality of the Governor's executive orders during Covid was barred by sovereign immunity. There, this Court upheld the denial of a motion to dismiss based on sovereign immunity where the parties had alleged a violation of the fruits of one's labor clause of the Constitution."

    The recent case Kitchen cites was Kinsley v. Ace Speedway Racing Ltd. In a unanimous Aug. 2 ruling, the Court of Appeals determined that raceway owners could move forward with a lawsuit against the state's top health official.

    "Like the present case, the parties in Ace sought monetary damages," Kitchen wrote in the latest brief for bar owners. "Further, this Court in Ace disavowed the State's attempt to argue that this Court should take judicial notice of the factual data surrounding the COVID-19 pandemic and rule in favor of the State."

    "Here, the Governor ordered the Plaintiffs' businesses to be closed," Kitchen added. "[T]he Plaintiffs were then deprived of there [sic] right to earn a living guaranteed by" two sections of the N.C. Constitution's Declaration of Rights. "The Plaintiffs were prevented from earning money. Money is what the Plaintiffs were deprived of by the State; therefore, there simply is no other remedy which would compensate the Plaintiffs in this action for the depravation of their constitutional rights other than monetary relief."

    References to the Ace Speedway case crop up throughout Kitchen's brief. "In the case at bar, as in Kinsley, the Executive Orders being challenged by the Appellees do not attempt to regulate a business, but instead ordered the businesses to close," he wrote. "The Appellees have a colorable claim for the violation of their right to earn a living. The operating of a bar is an ordinary trade. The State does not possess the police power to order bars closed as was done in Executive Order 118 on March 17, 2020."

    As the Appeals Court considers whether to allow the bar owners to proceed with their lawsuit, the state is asking the N.C. Supreme Court to take up the Ace Speedway case. State officials filed paperwork Sept. 6 with the state's highest court. Government officials urge justices to reverse the Appeals Court ruling favoring speedway owners.

    Because appellate judges ruled unanimously in that case, the state Supreme Court faces no obligation to consider the matter.