No Evidence Supporting North Carolina Governor’s Uneven Closure of Bars: Court

North Carolina Gov. Roy Cooper in Raleigh, N.C., on June 2, 2020. Ethan Hyman/The News & Observer via AP

No evidence supports the decision by North Carolina’s governor to close some bars while letting others stay open, a court ruled on April 16.

North Carolina Gov. Roy Cooper, a Democrat, in an executive order in March 2020 forced all bars in the state to close. Two months later, he issued a new executive order that allowed bars inside restaurants to reopen but required others to remain shuttered.

The first order might have been reasonable but the second was irrational, the Court of Appeals of North Carolina said in the new ruling.

“Defendant’s ’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. We have considered the ’science and data’ presented by defendant to justify the distinction between closing some types of bars and not others, but this information does not support defendant’s position, even if we consider all such information to be true,” Judge April Wood wrote in the unanimous opinion.

The North Carolina Bar and Tavern Association brought a lawsuit. It was tossed by a lower court, prompting an appeal.

Mr. Cooper has repeatedly said that “science and data” guided his actions during the COVID-19 pandemic, but only presented a single study on COVID-19 cases in bars, according to the court.

That study, a preprint paper published months after Mr. Cooper’s uneven bar closure order, concluded that there were surges in COVID-19 infections after bars reopened in several states.

However, the study “does not differentiate between various types of bars; it would apply equally to the bars defendant allowed to resume operations as to plaintiffs’ bars,” Judge Wood said.

Given the timing of the paper, Mr. Cooper could not have relied upon it, she added.

Mr. Cooper said in his May 20, 2020, executive order that bars were being forced to remain closed. The order defined bars as establishments with a permit to sell alcohol for onsite consumption and are principally engaged in selling alcohol for such consumption. Bars inside restaurants were excluded.

“By their very nature, [bars] present greater risks of the spread of COVID-19,” the order stated. “These greater risks are due to factors such as people traditionally interacting in that space in a way that would spread COVID-19, shared equipment that is repeatedly touched by customers or attendees, or a business model that involves customers or attendees remaining in a confined indoor space over a sustained period.”

The order did not cite any studies or other data.

The governor, in support of the order, also pointed the court to an executive order he issued in January 2021. The remaining evidence presented by the government consisted of news articles. None of them cited any studies.

“‘Research’ such as these news articles could be conducted by private citizens utilizing Internet search engines. In fact, many of the documents in the record were gathered from Internet searches as evidenced by the tags and links at the bottom of the printed pages,” Judge Wood said. “Excepting one, none of the documents purport to be scientific studies.”

She added later: “Defendant has not demonstrated any logic in the complete closure of bars for on-premises service when the same measures that allowed other types of bars, such as hotel and restaurant bars, to open could have been applied to the operation of those businesses.”

Bars could have opened with the same restrictions imposed on restaurants, including restaurants that served alcohol, the judge said.

“If restaurants serving alcohol could operate at fifty 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 do the same with alcohol service,” she wrote.

The order violated owners’ rights under North Carolina’s constitution, which states in part that people are endowed with the inalienable right to “enjoyment of the fruits of their own labor,” according to the ruling.

“The unequal treatment of plaintiffs compared to other similar establishments was illogical and not rationally related to defendant’s stated objective of slowing the spread of COVID-19,” it stated.

Judges Donna Stroud and Jennifer Griffin joined in the ruling.

The case was remanded back to the trial court. The parties did not respond to requests for comment.

The appeals court also turned down a request for compensation because the government did not take the property of plaintiffs and a request for attorneys’ fees.

The same court ruled in 2023 that a case filed by a different set of bar owners against Mr. Cooper could move forward. The owners challenged the March 2020 order while noting that bars were kept closed until 2021.

The order deprived plaintiffs from earning money and the courts should award money to the owners as a result, their lawyers said.

Mr. Cooper appealed that ruling and the case now rests with the North Carolina Supreme Court.