ALAMANCE COUNTY, N.C. — A judge has ruled in favor of the state in the case against Ace Speedway.
Ace Speedway was accused of violating the governor’s order banning events with more than 25 people outside amid the pandemic. A court order forced the race track to comply with a temporary restraining order and stop racing. A second hearing on the matter took place last Friday.
On Wednesday, Judge Tom Lambeth ruled in favor of the state, writing that “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 continued. “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.”
Following the ruling, Ace Speedway attorney Chuck Kitchen said he will be filing an appeal of the judge’s order. He said he is going to contest the Order of Abatement with the Office of Administrative Hearings in Raleigh.
Asked if there was any chance Ace Speedway would try to open under the state’s social distancing requirements, he said no, adding that the owner testified that he would lose money operating a race with only 25 spectators.
To read the full ruling, click here.
Last Friday, attorneys were able to call witnesses. The court plans to make a final ruling Wednesday.
Lambeth heard arguments from the North Carolina Department of Health and Human Services attorney Andrew Casper and Kitchen in the second hearing. Kitchen’s principal argument was that the governor violated the first amendment in ordering Ace Speedway and other businesses to close during the pandemic.
Kitchen called on Alamance County Major Jackie Fortner as his first witness followed by Sheriff Terry Johnson. Alamance County Public Health Director Stacie Turpin Saunders was also called in.
Jason Turner, the part-owner of Ace Speedway, was called after a recess.
Jason Turner said they typically need about 1,000 fans to break-even per race. Average ticket prices are about $15. They have about 45 employees.
He said they did contact tracing in the form of a roster, had plexiglass on the concession stand windows, used touchless thermometers on guests. The roster was, in turn, handed over to the health department.
The owner told the court that, during the first race, someone submitted a fake name. In response, they implemented a new policy of photographing guests’ driver’s licenses to confirm every guest’s identity.
The race track included signage at entry points directing people who may have been exposed to the coronavirus or had symptoms to not attend the race. Jason Turner said he is aware of one guest who had to be turned away.
One family requested a refund saying they could not find a seat where they could follow appropriate social distancing, Jason Turner said. Seating capacity is about 5,000.
Robert Turner, part-owner of Ace Speedway, was called after his son.
Robert Turner said they pay a $64,000 into a mortgage each year. Business runs early-April until October. Outside of that season, they maintain the facility and plan for the following season.
“It’s pretty much a deathwish,” 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.”
He says people will not come out during bad or cold weather past October.
On June 11, Lambeth ruled in favor of North Carolina’s health department in its case against Ace Speedway to grant a temporary restraining order forcing the race track to close.
Upon returning after a recess on June 11, the judge said that state leaders are likely very stressed amid the pandemic and are working through a “true public health emergency.”
“It really makes me sad how sort of contentious some of this is becoming among people in our society,” the judge said. “You know, we are all American. I keep shaking my head sometimes because we’ve got such an us-versus-them mentality in our nation right now that is so regrettable.”
The temporary restraining order, requested by the state, meant that the race track must close until further instruction.
After the order was issued, Ace Speedway announced on Facebook that they canceled Thursday open practice, as well as June 13 and 19 events.
“Thank you to our local officials who have stood by their beliefs,” Ace Speedway said in Facebook. “Thank you to our fans, our employees, our sponsors and our race teams who have expressed their support through the good and the bad. Continue to stick with us, this does not mean 2020 is over, just on hold.”
Crew member tests positive after race at Ace Speedway
Since that ruling, the community has learned that a crew member for a racing team that was involved with a recent race at Ace Speedway has tested positive for coronavirus.
The race was held on June 6 before the race track closed.
The name of the person who tested positive has not been released at this time.
Alamance County health officials say the patient was not a resident of Alamance County, and the county has not identified any clusters of cases linked to the Ace Speedway event.
The county has shared the event’s spectator information with state partners in order to do cross-referencing with cases in other jurisdictions as the health department says the overwhelming majority of spectators did not reside in Alamance County.
Governor began by asking Ace Speedway for a plan
Gov. Roy Cooper initially ordered Ace Speedway to close on June 8 and called the venue an imminent hazard.
Cooper and NCDHHS Secretary Mandy Cohen said in the order that the speedway could reopen for customers if it presented a plan showing it would follow state guidelines, so long as it was approved by NCDHHS.
Ace Speedway had until 5 p.m. June 9 to tell the public that races and other upcoming events would be canceled until Monday, June 22.
As of the afternoon of June 10, the speedway had not notified the public of a closure. The first acknowledgment came June 11 after the restraining order was issued.
“We haven’t been notified that they’ve been closing so that will escalate to some additional legal steps we take in court,” Cohen said in a news conference on June 10. “And I believe there will be a hearing on that tomorrow. So we will let the lawyers take that from there.”
Alamance County sheriff speaks out
Alamance County Sheriff Terry Johnson responded after the race track was ordered to close.
Johnson says he asked for clarification when the executive order mentioned certain activities being exempt, and the governor’s office did not respond.
“It puts me in a heck of a position as a sheriff, and any sheriff in this state, to try to write a citation to enforce the governor’s order when in fact it’s a constitutional violation in my opinion and the other sheriffs in this state,” Johnson said.
He told FOX8 that he isn’t sure why Ace Speedway was singled out when he was told that multiple other speedways in North Carolina have been running for several weeks.
“The governor stepped up and issued an order of abatement of imminent hazard, which he could have done in the very beginning, and none of this would have been going on,” Johnson said.
During a news conference, Cooper said he was not specifically aware of other tracks. In the case of Ace Speedway, he says they were flagrantly violating the executive order on large gatherings.
NCDHHS partnered with NASCAR to find a way to have the Coca-Cola 600, and they developed specific protocols for a safe event that were followed. She said they repeatedly asked for Ace’s compliance, but that didn’t work. Dr. Cohen says they need to show that they take this seriously.
Johnson says his original concern with being asked to issue Ace Speedway a citation was that it violated the first amendment of the Constitution.
“In his orders, he talked about the following are exempt: churches, weddings…and he stated other activities, which is covered under the first amendment,” Johnson said. “Paying to go see a race and be with your family is certainly a first amendment right. And with that order, I had a problem going and serving those citations.”
Johnson says a chief deputy and a major were sent to the speedway on Saturday and saw crowds with signs calling for unity.
“That puts it in a different light, too. They have a right to protest. Some people say ‘well, they paid money. Nobody else had to pay money.’ You have a right if you want to pay money and go in,” Johnson said.
He says he wants to work with Cooper, but he needs to be convinced that officials aren’t violating the rights of North Carolinians.
“I am concerned about the coronavirus and my citizens, but our Constitution was developed by our forefathers to govern the way law enforcement and everything else works in our society, and I hold that dear to my heart…let’s be level across the board,” Johnson said.
Cooper says local law enforcement has a duty to enforce the executive order and most want to work together. But if NCDHHS becomes aware of similar activity, they will take action.