Judge Struggles To Find Distinction That Would Keep N.C. Bars Closed

By John Trump
Carolina Journal News Service

RALEIGH — A Superior Court judge asked repeatedly Thursday, Feb. 18, for evidence that would justify state government orders that keep private bars closed across North Carolina.

The judge will decide soon whether to block the orders from Gov. Roy Cooper. A ruling against Cooper would free private bars to reopen under the same health and safety restrictions that apply to bars open now in restaurants, breweries, wineries, and other alcohol-serving businesses.

“What is there inherently different about a bar than a restaurant that justifies the distinction?” Judge James Gale asked an attorney representing Cooper. “Don’t keep telling me, ‘Bars in general.’ I’m asking you: Can you tell me — can you isolate something about bars specifically. … I’m begging you — if you’ve got it — to give me the evidence.”

The question of treating private bars differently from other bars serves as the key point of a case called Waldron v. Cooper. Lawyers for Crystal Waldron, owner of Club 519 in Greenville, argue that Cooper’s COVID-19 executive orders have singled out private bars for illegal and unconstitutional treatment.

Club 519 and many other private bars have been closed completely since March. Other bars have reopened during the course of the past year as Cooper has tweaked his COVID-19 orders.

“There’s something different in the private bars, and it’s the human behavioral effect,” said Cooper’s attorney, Special Deputy Attorney General Michael Wood. “That’s what the governor’s team is concerned by. The governor can’t just assume compliance — 100% compliance. We know from seeing students dance in the streets after games: That just doesn’t happen.”

But Waldron’s attorney argued that Cooper’s team has presented no evidence that a private bar operating under the same restrictions as other bars poses any greater COVID-19 risk.

“There’s no health or safety rationale underlying the disparate treatment between private bars and the rest of the bars that have been allowed to open,” said Jessica Thompson of the Pacific Legal Foundation. “This is a purely arbitrary distinction.”

Most other states are taking a different approach to bar operations during the pandemic. “If the best public health data reflects that bars should be closed in North Carolina, there are 38 states and the District of Columbia that disagree with that evidence, or have found health and safety precautions that they can institute that make bars safe,” Thompson said.

The judge recognized the economic impact of Cooper’s government-imposed COVID-19 shutdown on Waldron and other private bar owners. “I can certainly understand how you can take all those inconveniences that I had and add to it I don’t know whether my business is going to survive, and my whole life and livelihood is no longer there,” he said. “I understand. I really do.”

Gale outlined three potential rulings he could make. First, he could deny Waldron’s request for a preliminary injunction against Cooper’s orders. That option could allow the bar owner to seek a three-judge panel’s opinion on other constitutional claims.

Second, the judge could grant the injunction and make it effective immediately. Such a ruling would likely prompt an appeal from Cooper. Third, the judge could grant the injunction but not allow it to take effect until the state Supreme Court considers the issue.

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