COVID-era bar restrictions violated owners’ rights, NC court rules

NORTH CAROLINA — When Gov. Roy Cooper ordered North Carolina bars across the state to shut down due to the COVID-19 pandemic, it was a major blow to businesses. It also violated the rights of business owners in North Carolina, according to the state Court of Appeals.

The early days of COVID-19 brought unprecedented actions taken by state and federal officials, including mandates for businesses to stop operations in the name of public health concerns. One of the biggest hit industries was bars.

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All kinds of businesses, from major retail stores to restaurants, enacted state-mandated policies to increase social distancing and “stop the spread” of the virus. But bars, which make their living from selling predominately alcohol, were targeted with more stringent requirements and forced to shut down altogether.

In response to the executive order, the N.C. Bar and Tavern Association (NBATA) filed a lawsuit against Cooper claiming the governor’s actions violated their constitutional rights to make a living.

The North Carolina Court of Appeals agrees. That decision could mean the state will have to pay damages to bar owners impacted by the shutdown.

Tullulah Duffin said her business, Oh My Soul in NoDa, was one of the lucky ones. They were able to adjust when COVID restrictions were put in place and keep their doors open, but she knows how hard it was for other small businesses in the area. She’s hopeful the state will make reparations to the owners.

“If the state doesn’t cough up, they will literally have no choice but to close down, and that’s the God’s honest truth … This is the last chance and if it doesn’t … I feel like a lot of will lose that small business,” Duffin said.

Tristan Anderson is a bartender in NoDa and was working at the time of the shutdowns. While he was able to keep his job, he also knows plenty of people who were laid off and forced out of a job. He also said he understands the uncertainty of 2020 but ultimately questions the decision.

“I feel like at the time, maybe it seemed the right idea. But now with hindsight, I feel like we kind of realized that maybe it wasn’t the right idea to do that,” he said.

Equal protection rights violated

The logic for the closure of bars while keeping restaurants open that served alcohol was that bars, by nature, are social establishments that would be unable to maintain the strict regulations that restaurants could. However, the court determined former Secretary of the North Carolina Department of Health and Human Services Dr. Mandy Cohen didn’t rely on data or science to make the decision.

“Dr. Cohen does not offer empirical data or scientific or medical studies to support her assertions regarding the greater likelihood that bar patrons will not conform to the restrictions being imposed by EO 141,” the Court of Appeals Judges opined.

In response to the ruling, NCBATA President Zack Medford offered a statement on behalf of the organization and bar owners.

“We never asked for special treatment, only equal treatment,” Medford said. “Unfortunately, these private bars were forced to stay closed for a full year and without relief from the state. The governor’s decision forced many of these bars to eventually close permanently. Today’s ruling makes it clear that the governor was wrong and now the state needs to make it right.”

Although the NCBATA sued for several claims of constitutional violations, the court agreed to dismiss some claims. But they reversed a lower court’s ruling agreeing the shutdown did violate some of the rights of bar owners, including the rights to enjoy the fruits of their labor, and equal protection.

“There is no question that the Executive Orders do not just infringe on a fundamental right – those Orders eliminate that fundamental right while allowing competitors in indistinguishable situations to continue to exercise their fundamental rights,” the Court of Appeals opinion reads.

Gov. Cooper’s office responded to a request for comment on the court’s decision defending the actions taken in the early days of the pandemic.

“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. 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. 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,” Mary Scott Winstead, Senior Deputy Communications Director said.

(WATCH BELOW: Restriction on bars loosen; patrons belly up)