Bar owners make case for compensation based on Cooper’s COVID shutdowns | Eastern North Carolina Now

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

    N.C. bar owners are asking the state Court of Appeals to revive their lawsuit against Gov. Roy Cooper. They're seeking compensation for COVID executive orders that shut down or limited their businesses for a year.

    A brief filed Monday in N.C. Bar and Tavern Association v. Cooper explains why bar owners believe state government should compensate them for lost business.

    "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.

    The brief cites "423 days" of shutdowns or restrictions, though the timeline in the brief suggests Cooper's orders limited bar operations for roughly 350 days.

    Regardless of the correct number, bar owners argue they should be able to seek compensation from the state. A trial judge dismissed their suit in March.

    "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."

    "The North Carolina Constitution provides that citizens of the state may not be denied the equal protection of the laws," Tadych wrote. "The uncontested facts in this matter show that all other business entities serving alcoholic beverages in the state were allowed by the Defendant's Executive Orders to operate - except Appellants' businesses. The trial court erred by dismissing Appellants' constitutional claim for violation of their equal protection rights."

    State government lawyers representing Cooper will respond to the bar owners' arguments before the Court of Appeals proceeds with the case.

    In a related development, roughly two dozen of the "more than 185" original plaintiffs in the case filed paperwork Tuesday to drop their appeal. They have decided to accept the trial court's ruling.