Alamance County Superior Court Judge Tom Lambeth has ruled in favor of the state of North Carolina in the case against Ace Speedway.
The state, represented by attorney Andrew Kasper, had sued Ace Speedway earlier in the month in the hopes that the courts would issue an injunction denying track operators Robert and Jason Turner the ability to allow fans into the .400-mile short track until North Carolina enters its third phase of reopening.
That third phase was to have started on Friday, but Gov. Roy Cooper and Secretary of Health and Human Services Mandy Cohen have delayed that date to July 17 amidst a rapid increase of cases across the state.
Judge Lambeth ultimately sided with the state on Wednesday after reviewing testimony from both sides during a hearing last Friday.
“Dr. [Mandy] Cohen’s sworn declaration makes clear that the scientific and medical data show that large mass gatherings like those at Ace Speedway have been linked to increased spread of COVID-19 …
“Based on the facts presented at the hearing and applying the law to those facts the court hereby issues a preliminary injunction prohibiting the defendants from violating the plaintiff’s Order of Abatement,” Lambeth said. “The court does once again encourage the parties to work together if possible, to try and find a way of allowing the owners of the speedway to conduct races within the current restrictions.”
Lambeth said he “feels great empathy” for business owners during the pandemic, but must follow the rule of law.
Ace Speedway attorney Chuck Kitchen says he will be filing an appeal of the order, planning to contest it with the Office of Administrative Hearings in Raleigh.
To read the full ruling, click here.
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 has operated under the conviction that 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.
The Turners, represented by Chuck Kitchen, argued 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 during the hearing on Friday. “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.”
A crew member who attended the May 30 CARS Tour Race at Ace 125 tested positive for COVID-19.The CARS Tour 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.
Jason Turner has said the track could only break even with an attendance figure of 1,000 per week. As a result, the track will not open to the minimum 25 spectators permitted by current state regulations.
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.
Gov. Cooper appointed Lambeth to Superior Court judge in 2017 from the Alamance County District Court.