A decision will not be reached until Wednesday, but Alamance County Superior Court Judge Tom Lambeth once again heard arguments from attorneys and witnesses representing both Ace Speedway and the North Carolina Department of Health and Human Services on Friday morning.
The state, represented by attorney Andrew Kasper, has sued Ace Speedway in the hopes that the courts will issue an injunction ordering track operators Robert and Jason Turner from allowing fans into the .400-mile short track until North Carolina enters its third phase of reopening.
“You’ve got people in close physical proximity, that are cheering and yelling for an extended period of time, and that is leading to a risk of spreading COVID-19,” Kasper said.
The defense argued that the state is preventing the operators of Ace Speedway from “enjoying the fruits of their labor,” while suggesting that COVID-19 is not an emergency in the state of North Carolina.
Ace Speedway opened itself to an average of just over 2,000 fans for three consecutive weekends from May 22 to June 6 — despite an order from the state that outdoor venues could not exceed 25 persons under the current mass gatherings restrictions.
That order was ignored after Alamance County sheriff Terry Johnson declared it an unconstitutional act.
Ace Speedway believes it is being unfairly targeted by state officials due to regional dirt tracks, such as 311 Speedway in Pine Hall, continuing to operate in a similar manner without scrutiny or restraining orders.
The Turners, represented by Chuck Kitchen, argue that the North Carolina constitution allows them the opportunity to operate a successful business — a right that is being infringed upon due to coronavirus shutdown guidelines. Kitchen also argued on Friday that COVID-19 is not an emergency in North Carolina. He argued that the novel coronavirus should be taken seriously, but not at a state of emergency level.
“There’s no question COVID is a bad germ, and there’s no question there is a pandemic worldwide …” Kitchen said. “No one is going to argue what we have going on isn’t serious. But is it serious now? I would submit to the court it is no longer an emergency.”
Alamance County Health Director Stacie Saunders was called as a witness by the defense and testified under oath there is an ongoing public health emergency in Alamance County. Department of Health and Human Services secretary Dr. Mandy Cohen also testified to that effect in an sworn affidavit delivered by Kasper. The average number of new COVID-19 cases reported per day in Alamance County has doubled since June 1, according to Saunders.
A crew member who attended the May 30 CARS Tour Race at Ace 125 tested positive for COVID-19, with Saunders confirming the participant as a resident of Cabarrus County, and not knowing if the person had the virus before Ace or contracted it while at the track.
That event billed itself as a peaceful protest against inequality and injustice everywhere. The argument from the operating family has been that if protestors could march in the aftermath of the killing of George Floyd in police custody in Minneapolis, Minnesota, the racetrack could host paying customers under the pretense of a peaceful protest against government health regulations.
Peaceful protests are protected by the First Amendment of the United States Constitutions, while for profit businesses are regulated by the states in accordance with the Tenth Amendment.
Kitchen also called Sheriff Johnson and sheriff’s office Major Jackie Fortner to testify about a conversations with Jason Turner when they, following the order of Gov. Roy Cooper, asked the Speedway operators to not to allow spectators on May 22.
Fortner said Jason Turner cried upon hearing the decision.
“Mr. Turner said: ‘I’m going to lose everything I got,'” Fortner said in the testimony.
During testimony, Jason Turner said the track could only break even with an attendance figure of 1,000 per week. The younger Turner said Ace Speedway had developed plans to begin online streaming events starting in 2021 but noted subscription revenue would likely not cover the expenses of promoting events.
Robert Turner said the track would be forced to shut down without events with fans in attendance.
“I mean we can’t operate. We cannot maintain the facility or pay our bills without the revenue the racing brings,” Robert Turner said.
Major Fortner said he and Sheriff Johnson decided to not cite Ace Speedway because they felt the order was unconstitutional. Neither law enforcement officer specified exactly which part of the order was unconstitutional, or whether they meant the state constitution or the United States Constitution.
Kitchen argued that the state order would do “irreparable harm” to the Turners’ business, and they would have to foreclose because of lost revenue. The Turners say they pay about $64,000 a year in mortgage for the track, in addition to other operating costs.
“It’s pretty much a death (warrant),” Robert Turner said. “We can’t operate. We cannot maintain the facility or pay our bills without the revenue that the race track and racing brings.”
The Turners argued a sense of urgency, citing the viability of summer business, arguing that fans would not come in the fall once weather turns colder. The state agreed that harm would come to the Turners, as it has most businesses during the pandemic, but the need to protect public health is greater than the need to host motorsport events.
Judge Lambeth plans to release a decision on Wednesday, June 24. Until then, the restraining order to keep the track closed will remain in place. Kitchen said the track will continue to comply.
Gov. Cooper appointed Lambeth to Superior Court judge in 2017 from the Alamance County District Court.
The complete sessions can be viewed below.