By Matt McGregor
North Carolina business owners who were closed during the declared pandemic are taking another swing at getting financial compensation for their financial losses.
The North Carolina Bar and Tavern Association filed a brief on Monday asking the Court of Appeals to reconsider a lawsuit against Gov. Roy Cooper seeking “compensation for the government’s taking of private property” that a trial judge initially shot down in March.
The brief argues that the private property of members of the association is equivalent to their right to operate their businesses, and that property right was taken by the government when their businesses were closed.
According to the North Carolina Constitution, the brief argues, property seized must be compensated.
“The trial court found that the Appellants’ ability to produce and benefit from their labors through the operation of their businesses was eliminated for 423 days by the Defendant’s Executive Orders,” the brief states. “The trial court erred by dismissing the Appellants’ constitutional claim for the violation of their right to produce and benefit from their labors.”
The brief goes on to state that the Cooper “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.”
“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 brief states. “The trial court erred by dismissing Appellants’ constitutional claim for violation of their equal protection rights.”
‘Data and Science’
In May 2020, Cooper issued Executive Order 141—Phase 2—which eased restrictions on most businesses, “but not the Appellants’ businesses.”
“Despite having no meaningful distinction, all but private bars were permitted to reopen in restricted form when the Phase 2 order became effective on 22 May 2020,” the brief states.
Cooper cited “data and science” provided by “daily briefings from doctors and health care experts” to justify his restrictions; however when the N.C. Bar and Tavern Association filed a public records request to see the “data and science,” the state provided no records, the brief says, until 112 days later in September 2020, 185 days after Cooper had closed their businesses.
On Tuesday, after the brief was filed, several of the original 185 business owners withdrew their involvement from the case in a motion for partial dismissal of appeal.
The Center Square contributed to this report.