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ELON, N.C. (WGHP) – There will be more laps in the match race between the owners of ACE Speedway in Alamance County and state officials.

The North Carolina Court of Appeals, in a 3-0 decision, on Tuesday said that ACE’s lawsuit could go forward against Dr. Mandy Cohen, former head of the NC Department of Health and Human Services, about whether she went beyond her authority when closing the race track during the COVID-19 pandemic.

Former Secretary of the NC Department of Health and Human Services Dr. Mandy Cohen in 2021.

The ruling by three Republican judges indicated they felt this move by Cohen and Gov. Roy Cooper could have violated the state’s constitution and been an overreach of the state’s power.

In their opinion, the judges said the case “makes us consider the use of overwhelming power by the State against the individual liberties of its citizens and how that use of power may be challenged.”

The case now is called Kinsley v. ACE Speedway Racing Ltd., because Kody Kinsley last spring replaced Cohen in the leadership of DHHS. Cooper is not a named plaintiff, but his name appears in the 24-page opinion as the author of the executive order Cohen was enforcing.

In January 2021 Judge John M. Dunlow had denied Cohen’s motion to dismiss ACE’s claims, and Cohen appealed. There were oral arguments before the Court of Appeals in March.

There was no immediate response from Cooper’s office, DHHS or the speedway’s owners, Robert Turner and his son Jason, about this decision. Kinsley could appeal to the state Supreme Court.

ACE is a popular venue for stock cars near Elon that holds weekly races, and in June 2020, Cooper and Cohen ordered the speedway to close unless its management developed a state-approved plan for safety from the virus, which included spacing and limitation on crowd size.

The order had followed a letter sent from Cooper that said ACE Speedway was in “open defiance” of Executive Order No. 141, which limited mass gatherings to protect the safety of North Carolinians.

Cooper’s executive order had prohibited crowds of more than 25 people. The speedway reportedly admitted more than 2,500 — and possibly as many as 4,000 — to races on May 23, May 30 and June 6 in 2020. 

Large crowds tightly packed in at Ace Speedway
Large crowds tightly packed in at ACE Speedway

‘Use of overwhelming power’

In authoring the appellate court’s opinion, Judge Jefferson Griffin wrote that “this case makes us consider the use of overwhelming power by the State against the individual liberties of its citizens and how that use of power may be challenged.”

He cited ACE’s claims that addressed the constitution in suggesting that Cooper’s orders were an infringement on the track owners’ right to earn a living and that Cohen’s actions were “unlawful, selective enforcement.”

“We hold that Ace pled each of its constitutional claims sufficiently to survive the Secretary’s motion to dismiss,” Griffin wrote. The government “may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.”

In 2020

Ace Speedway holds 'protest' race with more than 800 tickets sold despite governor's rebuke
Ace Speedway holds ‘protest’ race with more than 800 tickets sold despite governor’s rebuke

When Cooper caught wind in 2020 that there were some 2,000 in attendance at the track, he called the event “reckless” and “dangerous.” The state filed suit.

Alamance County Sheriff Terry Johnson, who had delivered Cooper’s messages to track officials that they should close, said at the time he did not cite the owner because he was unclear of the governor’s wording in the executive order. The Turners had called one event on a Saturday a “Unity Rally with Racing.”

“A lot of folks don`t understand this race track as a small business, and with all the COVID-19 situation, a lot of small businesses have been put under a lot of great pressure, and many of them have closed. This race track has reached a point where they had to race or they were going to run out of money and were going to have to close,” fan Randy Pettit told WGHP at the time.

Alamance County government officials issued a statement that said they were puzzled about Cooper’s comments because “no one from the governor’s office has reached out directly to the county, even after the county requested guidance and input. Local governments across North Carolina have asked repeatedly to have a voice in how the COVID restrictions impact their communities. However, those requests have not been addressed.

“Alamance County Government has repeatedly reached out to Governor Cooper and NCDHHS for guidance in how to assist ACE Speedway to operate in a safe manner.”

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Officials said they had questions about the governor’s executive order and “its applicability and enforcement.”

Alamance County Superior Court Judge D. Thomas Lambeth Jr. in June 2020 said NC DHHS made a clear and compelling case for COVID-19 being a public emergency, and that large mass gatherings such as racetrack crowds are linked to increased spread.

The Turners said that they would pursue legal remedy to remain open.