BOONE — Less than 24 hours after the restriction was passed, a Watauga County judge has blocked the town of Boone from enforcing a restriction barring anyone who has overnighted outside of Watauga County from entering indoor establishments until they have stayed in the county for 14 days.
Superior Court Judge Gregory Horne on May 22 granted a request for a temporary restraining order filed at 4:07 p.m. by Anne-Marie Yates, Mountain Resort Management LLC (dba Holiday Inn Express), Hospitality Group of Hickory and Smokey Mountain Hospitality LLC. The parties are represented by Nathan Miller.
A hearing on a preliminary injunction is scheduled for 10 a.m. June 1. The Boone Town Council will hold a special web meeting at 9 a.m. Tuesday, May 26, to have further discussion on its state of emergency declaration and COVID-19-related restrictions.
Just after 11 p.m. on May 21, Boone Town Council Members Sam Furgiuele, Dustin Hicks and Connie Ulmer voted to approve amendments to the town's COVID-19 state of emergency declaration, which were first proposed by Furgiuele on May 7. Councilperson Nancy LaPlaca voted against the amendments, and Councilperson Loretta Clawson was absent.
The restrictions were passed the day before Watauga County’s 14-day self-quarantine order was to be lifted.
The governor’s executive orders enacted since March to slow the spread of the COVID-19 virus have allowed for local government restrictions that go beyond the statewide mandates. Since a state of emergency was declared by Watauga County on March 15, Watauga County and the county’s four municipalities have amended their declarations of emergency to enact restrictions banning overnight lodging and short-term rentals, closing all public playgrounds, recreational courts and shelters and requiring 14-day quarantines for those arriving from an overnight stay outside of the county.
The county commissioners voted May 19 to lift the 14-day quarantine order and allow short-term rentals at 50 percent capacity at the beginning of Phase 2 of the statewide reopening plan, which began at 5 p.m. May 22. The town's restrictions passed May 21 represented a departure from the unified countywide actions.
Prior to the council's vote on the restrictions, town attorney Allison Meade advised that in her opinion, "I’d be concerned about litigation."
Miller said his clients would challenge whether the Boone Town Council's restriction was lawful under § 166A-19.22, the N.C. General Statute governing municipal and county declarations of emergency — specifically, whether or not the town's "emergency" is legitimate in light of evidence that the state has "flattened the curve."
The clients will also challenge on constitutional grounds, including the right to travel under the U.S. Constitution and the right to earn a livelihood under the North Carolina Constitution.
"We were put in the lockdown to flatten the curve," Miller said, and to give health providers time to stock up on personal protective equipment and ventilators.
"Everybody complied with it for the most part," Miller said. "It was a restriction of my constitutional rights, but we all complied with it." Now, he says, the town of Boone has "moved the goalpost."
According to the order, the court finds that "the plaintiffs' need for an immediate restraining order is great, and they will suffer irreparable harm without it." The court also finds that "the inability of the plaintiffs to run (their) business has the potential for immediate harm to their reputation by being unable to honor previously made reservations."
Miller said he has heard from additional parties who have expressed interest in joining the lawsuit.
The town's amendments to its emergency declaration also included measures requiring face masks to be worn by employees interacting with the public, mandating social distancing in establishments open to the public, mandating screening by establishments of employees for COVID-19 symptoms and other measures. These measures are not affected by the temporary restraining order.
Boone staff and council members did not immediately respond to a request for comment on the temporary restraining order.
The Boone Town Council held an emergency meeting at 11 a.m. May 23, meeting for about 50 minutes in closed session to consider and give instructions to the town attorney with regard to the lawsuit. Following the closed session, the council returned to open session and discussed the scheduling of a special web meeting at 9 a.m. Tuesday, May 26, to discuss and potentially take action with regard to the emergency declaration. Most of the 30-minute open discussion centered around whether or not to allow further public comment at the special meeting.
“There’s not purpose in hearing more public comment about this. We’ve heard plenty of comment from the public," said Furgiuele, adding that he's received 100 emails about the town's action — "some of them obscene."
LaPlaca argued in favor of hearing more comment, and the council voted 3-2 (with Furgiuele and Clawson against) to allow public comment for 30 minutes, with speakers selected from a list in random order.
“We are not doing our public duty when we have a meeting and we do not allow the meeting to speak," LaPlaca said. "When that gets uncomfortable, we can’t just say, 'no, we don’t want to hear from you.'”
The Boone Area Chamber of Commerce, which expressed opposition to Boone's proposed restrictions several times before and after the May 21 council vote, on May 22 shared information about the temporary restraining order with chamber members.
"The Boone Area Chamber of Commerce is pleased to announce that visitors from outside the county may come to Boone and interact with our businesses, in accordance with NC Safer-At-Home order guidelines," the chamber said. "We ask that you respect our community, local businesses and their employees by practicing your 3Ws (wear a mask, wash your hands and wait six feet apart). Our businesses have been hard at work keeping our local community safe during the last few months. We are excited to see many of you again, and encourage you to interact with our community in a way that helps #KeepBooneHealthy."