Last Wednesday, May 20th, North Carolina Governor Roy Cooper announced another step toward the State’s reopening plan and signed a new Executive Order easing restrictions on businesses such as restaurants, salons, pools, day cares, overnight camps, and tattoo parlors. “Phase Two” of the reopening plan officially commences Friday, May 22, at 5pm. Yet, bars, nightclubs, gyms, and health clubs are expressly, and perhaps unfairly, singled out as establishments that must remain closed under the new order.
Ohio Businesses Challenge Restrictions
On the same day, an Ohio judge issued a preliminary injunction, ruling that the state cannot impose penalties on gyms and fitness centers solely because they reopen their facilities prior to May 26, the date that state set to permit reopening health centers.
The Ohio civil lawsuit was filed on behalf of 35 gyms and fitness centers against the state health director and local general health district. The lawsuit sought and obtained a preliminary injunction enjoining law enforcement and attorneys general in the state from imposing or enforcing criminal penalties for gyms failing to comply with the health director’s order to remain closed until May 26.
Legal Challenges in North Carolina Federal Court
Here in North Carolina, federal district court Judge James C. Dever III recently held that the State’s now expired Stay-in-Place Order violated religious free expression rights and granted a temporary restraining order permitting churches to gather in groups larger than ten. And a petition was posted on Change.org entreating Governor Cooper to “Re-Open North Carolina Gyms.” Within only a matter of hours, the petition reached its goal of 2,500 signatures and now is rapidly climbing to 5,000.
Like the gym case in Ohio, there is concern that government orders criminalizing the operation of lawful businesses violates the fundamental liberty to own and use property and to earn a living. As stressed in Judge Dever’s May 16 order:
“This court does not doubt that the Governor is acting in good faith to lessen the spread of COVID-19 and to protect North Carolinians. But restrictions inexplicably applied to one group and exempted from another do little to further these goals. . . .”
Indeed, many gyms and health centers will not survive financially if the lockdown and discriminatory singling out of gyms continues.
Business Owners May Face Criminal Sanctions
North Carolina business owners violating the current executive order can be charged with a misdemeanor criminal offense. But this arbitrary discrimination against gyms and health facilities harm not only the gyms and their owners. The acquisition, improvement, and maintenance of health, including individuals’ immune systems, and enhanced social infrastructure and mental support are important to combat well-known the public health risks including heart disease, obesity, and depression. Restricted businesses owners are right to question why they have not been provided an opportunity to similarly demonstrate that their workplaces can be opened with appropriately implemented precautions. The State indiscriminately restricting certain industries under threat of criminal prosecution against employers for pursuing their livelihood merits consideration for a legal challenge.
If you are a gym owner in need of counsel regarding your potential criminal exposure or seeking to consult with an attorney about the arbitrary discrimination of reopening a gym-free North Carolina, the attorneys at Dysart Willis Houchin & Hubbard, PLLC are available to take your call.