Talleywhacker, Inc. v. Cooper

465 F.Supp.3d 523

TALLEYWHACKER, INC., d/b/a Arizona Pete's Country Music Saloon; Asheville Golf & Travel, Inc., d/b/a the Treasure Club; BLL Enterprises, Inc., d/b/a Leather & Lace South ; B&S Enterprises, Inc., d/b/a Tassels; DBD#1, Inc., d/b/a Leather and Lace Gastonia ; DDDD, Inc., d/b/a Gold Club; Edison's Lounge, LLC, d/b/a Edison's Lounge Gentlemen's Club; Gist and Hendrix, LLC, d/b/a Secrets Cabaret; Jacksonville Golf and Travel, LLC; d/b/a Platinum Gentlemen's Club ; JMB Gold & Travel, Inc., d/b/a the Treasure Club Greensboro; Leather & Lace, Inc., d/b/a Leather & Lace University ; Long View Golf & Travel, Inc., d/b/a the Treasure Club; Mistylou Investments, LLC, d/b/a Tobies Gentlemen's Lounge; National Golf Distributors, LLC, d/b/a Stiletto Gentlemen's Club; RDU Golf & Travel, LLC, d/b/a Pure Gold; RPS Holings, LLC, d/b/a Capital Cabaret/ 747 Chophouse; Southern Pines Golf Distributors, LLC, d/b/a Cheetah; TD Operations, LLC, d/b/a Limelight; TMC Restaurant of Charlotte, LLC, d/b/a the Men's Club of Charlotte ; Top Shelf Entertainment, LLC, d/b/a Club Onyx; Triad Golf & Travel, Inc., d/b/a Centerfolds; TWDDD, Inc., d/b/a Scores; Wilmington Golf Distributors, LLD, d/b/a Cheetah; 3 MB Hospitality, LLC, d/b/a Savannah's Gentlemen's Club; 200 W Woodlawn Road, Inc., d/b/a Gentlemen's Club; 511 Cotanche St. Entertainment, LLC, d/b/a Still Life, Plaintiffs,

v.Roy A. COOPER, III, in his official capacity as Governor of the State of North Carolina, Defendant.

NO. 5:20-CV-218-FL

United States District Court, E.D. North Carolina, Western Division.

Signed June 8, 2020

Amiel J. Rossabi, Rossabi Law Partners, 706 Green Valley Road, Suite 410, Greensboro, Greensboro, NC 27408, United Sta, 336–895–4350, Email: arossabi@r2kslaw.com, for Plaintiffs.

John Howard Schaeffer, NC Department of Justice, Post Office Box 629, Raleigh, NC 27602–0629, 919–716–6843, Fax: 919–716–6758, Email: jschaeffer@ncdoj.gov, Tamika L. Henderson, North Carolina Deptartment of Justice, 114 West Edenton Street, 9001 Mail, Service Center, Post Office Box 629, Raleigh, NC 27602–0629, 919–716–6500, Fax: 919–716–6563, Email: tlhenderson@ncdoj.gov, for Defendant.

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter is before the court on plaintiffs' motion for preliminary injunction.¹ (DE 13). In accordance with an expedited briefing schedule, defendant responded in opposition and plaintiffs replied. In this posture, the issues raised are ripe for ruling. For the following reasons, plaintiffs' motion is denied.

STATEMENT OF THE CASE

Plaintiffs commenced this action on May 26, 2020, to enjoin defendant from applying and enforcing executive orders mandating a closure of their entertainment businesses following declaration of a State of Emergency to address the Coronavirus Disease 2019 ("COVID-19"). Plaintiffs also seek declaratory relief, attorneys' fees, and costs.

Plaintiffs assert claims under 42 U.S.C. § 1983 for violation of 1) the Equal Protection Clause of the Fourteenth Amendment, 2) the Free Speech Clause of the First Amendment, and 3) Due Process Clause of the Fifth and Fourteenth Amendments. Plaintiffs also assert claims under the North Carolina constitution. In support of the complaint, plaintiffs rely upon declarations by their owners and authorized representatives, affirming the veracity of the factual allegations in the complaint. (See DE 2 – DE 12). Executive orders purportedly at issue in the action, along with guidance documents and plans issued by defendant, also have been made a part of the record.

Plaintiffs filed the instant motion on May 26, 2020, with accompanying memorandum of law and notice of summons to defendant, seeking emergency relief in the form of a TRO and preliminary injunction -

enjoining the Defendant Governor from applying and enforcing the provisions of Executive Order Nos. 117, 118, 120, 121, 135, 138, and 141, which imposed the forced closure of Plaintiffs' businesses, and those provisions of Executive Order No. 141 that prevent Plaintiffs from being allowed to open and operate the same as restaurants, commercial wineries, breweries, and distilleries, or the many other "service" and other businesses allowed to open and operate under the Phase 2 provisions of Executive Order No. 141.

(Pl.'s Mot. (DE 13) at 3).

On May 27, 2020, the court denied that part of the instant motion seeking a TRO, directed defendant to file response to the motion by June 1, 2020, and allowed plaintiffs to file a reply by June 3, 2020. Defendant timely responded in opposition to the instant motion with reliance upon 1) affidavit of Dr. Mandy Cohen ("Dr. Cohen"), Secretary of the North Carolina Department of Health and Human Services ("NCDHHS"); 2) declaration of Tamika Henderson ("Henderson"), Special Deputy Attorney General of the North Carolina Department of Justice; and 3) guidance document issued by NCDHHS on June 1, 2020.

Plaintiffs in reply filed June 3, 2020, place reliance upon 1) affidavit of Doug Adkins ("Adkins"), owner and operator of plaintiffs National Golf Distributors, LLC, RDU Travel & Golf, LLC, Triad Golf & Travel, Inc., and Wilmington Golf Distributors, LLC, with exhibits thereto; 2) affidavit of Joey Bien ("Bien"), owner and operator of plaintiffs Asheville Golf & Travel, Inc., JMB Golf & Travel, Inc., and Long View Golf & Travel, Inc., with exhibits thereto; 3) affidavit of David Baucom ("Baucom"), owner and operator of plaintiffs BLL Enterprises, Inc., B & S Enterprises, Inc., DBD#1, Inc., DBLL, Inc., DDDD, Inc., Leather and Lace, Inc., TWDDD, Inc., and 200 W. Woodlawn Road, Inc., and exhibits thereto; 4) affidavit of Douglas L. Jenkins, ("Jenkins"), a licensed engineer and designer of ventilation systems, with exhibit thereto; and 5) affidavit of Dr. Arin Piramzadian ("Dr. Piramzadian"), chief medical officer of Star Med Urgent Family Practice Care, with exhibit thereto.²

STATEMENT OF FACTS

A. Defendant's Executive Orders and Guidance

Plaintiffs allege the contents of executive orders and documents issued by defendant, which documents speak for themselves. By way of summary, some of the key terms of the executive orders and documents pertinent to plaintiffs' claims are as follows:

1. Executive Order 116

On March 10, 2020, defendant declared a State of Emergency "based on the public health emergency posed by COVID-19." (Exec. Order No. 116; see, e.g., Compl., Ex. H. (DE 1-9) at 2 (referencing declaration of State of Emergency)).

2. Executive Order 117

On March 14, 2020, defendant ordered a prohibition on "mass gatherings," defined as "any event or convening that brings together more than one hundred (100) persons in a single room or single space at the same time," excluding "normal operations at airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where more than one hundred (100) persons are gathered." (Compl., Ex. A (DE 1-2) at 3). The prohibition on mass gatherings did "not include office environments, restaurants, factories, grocery stores or other retail establishments." (Id. ). Executive Order 117 provides that violations of the prohibition are punishable as a Class 2 misdemeanor.

Executive Order 117 also closed schools through March 30, 2020, and urged "social distancing (approximately six feet away from other people) whenever possible." (Id. at 4).

3. Executive Order 118

On March 17, 2020, defendant ordered a limitation on the "sale of food and beverages, to carry-out, drive-through, and delivery only." (Compl., Ex. B (DE 1-2) at 4). Where Executive Order 117, had specifically excluded "restaurants" and "other retail establishments" from its definition of mass gatherings, Executive Order 118 revised the language to remove "restaurants" and "other retail establishments." (Id. ). It also stated "[b]ars are directed to close." (Id. ).

4. Executive Order 120

On March 23, 2020, defendant ordered amendment to the definition of mass gatherings to a 50 person threshold. (Compl., Ex. C (DE 1-4) at 4). In addition, Executive Order 120 provided that "entertainment facilities without a retail or dining component are ordered to close at 5:00 pm on Wednesday March 25, 2020, though any retail or dining component may operate within that establishment solely for that purpose," within the requirements of Executive Order No. 118. (Id. ). Such "entertainment facilities" were enumerated to include:

• Bingo Parlors....

• Bowling Alleys

• Indoor Exercise Facilities (e.g., gyms ... indoor trampoline ... facilities)

• Health Clubs

• Indoor/ Outdoor Pools

• Live Performance Venues

• Movie Theaters

• Skating Rinks

• Spas

• Gaming and business establishments which allow gaming activities

(Id. at 4).

In addition, Executive Order 120 provided that "because the ability to practice the social distancing necessary to reasonably protect against COVID-19 is significantly reduced in certain establishments where individuals are in close proximity for extended periods of time, or service personnel are in direct contact with clients, personal care and grooming businesses, including but not limited to the following are ordered to close:"

• Barber Shops

• Beauty Salons

• Hair Salons

• Nail Salons ...

• Massage Parlors

• Tattoo Parlors

(Id. ).

5. Executive Order 121

On March 27, 2020, defendant entered a 30 day "stay at home" order, effective March 30, 2020, with numerous exceptions, including nine broadly-defined "Essential Activities" and 30 broad categories of "Essential Businesses and Operations," including "Restaurants for consumption off-premises." (Compl., Ex. D (DE 1-5) at 4-8). Businesses that were not "Essential Businesses and Operations" were "required to cease all activities within the State except Minimum Basic Operations," defined as including the "minimum necessary activities to maintain the value of the business's inventory, preserve the condition of the business's physical plant and equipment, ensure security, process payroll and employee benefits, or related functions." (Id. at 10).

In addition, ...