CHARLOTTE, N.C. — Frustrated business owners are now revolting against Gov. Roy Cooper and Phase 2 of his reopening plan. From gyms to strip clubs, shuttered businesses are taking Cooper to court in hopes they can reopen.
Filed Wednesday in federal court, dozens of adult entertainment clubs asked a judge to allow them to reopen. Filed Wednesday in superior court, a lawsuit on behalf of gyms and fitness facilities seeking the same thing.
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On Tuesday in federal court, a Raleigh trampoline park filed a lawsuit seeking damages for being forced to close and the Bowling Proprietors Association of the Carolinas and Georgia sent a letter to Cooper, threatening legal action if bowling alleys can’t reopen any time soon.
They believe his plan is infringing on their constitutional rights.
Hive Fitness in lower South End is done waiting. Rob Jenkins said the gym is some people’s sanctuary.
“And I’m not overstating it when I say that. It’s where you go when the rest of the world is on fire and it’s your place of stability,” Jenkins said.
Jenkin’s business was only open for two months before he and his business partners had to shut down in March due to the governor’s stay-at-home order.
“Some really cool stuff happened and then, just bam, right out from under us," he said.
Hundreds of gyms across the state are in the same boat. Now, several are fighting Cooper’s order in superior court. Attorney Chuck Kitchen, who filed a lawsuit against the state Wednesday, is representing several gyms.
“The Constitution recognizes that you have an absolute right to work. It cannot be removed by the state, the state does not have the authority to say you cannot work,” Kitchen said.
But last week, Department of Health and Human Services Secretary Dr. Mandy Cohen, said gyms were excluded from Phase 2 because they’re at a higher risk for spreading the virus.
“At this point, it just feels arbitrary for some other stuff to be open and us not be,” Jenkins said.
Despite the order, some gyms have still been reopening. Cooper addressed them Tuesday at a news conference.
“It’s deeply concerning when people ignore the order," he said. "I’m pleased that most people and that most businesses in North Carolina are acting responsibly.”
But it’s not just gyms that are frustrated.
A trampoline park in Raleigh filed a lawsuit Tuesday and so did more than two dozen companies that run adult entertainment venues, including several in Charlotte.
A federal judge denied the strip clubs’ request Wednesday for a temporary restraining order. The adult entertainment venues allege that the state’s pandemic-related restrictions, which have kept them closed for two months, violate their constitutional rights.
“The general idea behind these lawsuits is that the executive branch cannot make a rule that limits people’s civil authority, their civil rights,” said Corey Rosensteel, an attorney and legal expert. “They may believe they have the best chance of winning when they go to the appellate courts. They could believe they have a better chance in front of a federal appellate court than a North Carolina state appellate court.”
In a lot of cases, the businesses ask for a TRO that will allow them to reopen while the case works through the legal system.
Although the judge’s order doesn’t allow the clubs to reopen immediately, their lawsuit against the state proceeds.
It's worked in the past. Churches got a TRO from a federal judge paving the way for indoor services. But just because houses of worship were successful doesn't mean gyms and trampoline parks will be.
“Your right to go to a trampoline park is not specifically written in the constitution like the right to worship is,” Rosensteel said. “That’s going to be a big issue.”
Still, some plaintiffs hope to replicate what happened in Wisconsin, where the state’s Supreme Court struck down the stay-at-home order and allowed businesses to reopen
But just because it happened there, doesn’t mean it will happen here
“What you’ve got to realize is the laws are going to be slightly different state to state, and so the individual issues in the Wisconsin case are going to be a little bit different than the individual issues in North Carolina,” Rosensteel said.
In response to the lawsuit by strip clubs, Dory MacMillan, spokesperson for Cooper, released this statement:
“Although our metrics are relatively stable, we have seen an increase in hospitalizations and positive cases over the last few days. Phase 2 is a modest step to boost the economy while protecting public health, and Governor Cooper and state health officials will continue to work with the private sector as we move forward.”
Seventy-five bowling alleys are also threatening to sue the governor.
Attorney for the Bowling Proprietors Association of the Carolinas & Georgia Anthony Biller said many bowling alleys “face imminent insolvency” because of the two-month shutdown during the pandemic.
Biller said the bowling alleys can operate under the same guidelines that restaurants and personal care businesses are now working under such as 50% capacity, social distancing guidelines and strict cleaning protocols.
“[P]ublic health and allowing our bowling facilities the opportunity to resume operations should not be viewed as mutually exclusive,” Biller wrote in a letter to Cooper on Tuesday. “Further, we see no rational let alone compelling reason to close our client’s bowling lanes, but allow their retail shops and restaurant facilities to function. It is an arbitrary distinction that is imposing ongoing irreparable harm to family-owned lanes across our state.”
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Bars are waiting to reopen too, but state lawmakers are trying to help them out.
There’s a Senate bill to allow bars to sell drinks outside on a patio or under a tent. Cities could temporarily shut down streets to make space for outdoor seating.
[CHART: THE DIFFERENCES BETWEEN STAY-AT-HOME AND SAFER-AT-HOME ORDERS]
The bill is still working through committees.
Most of the businesses that are fed up with waiting to reopen can open their doors under Phase 3, which is set for June 26.
But many say their businesses won’t survive that long.
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