State, Ace Speedway owners

Alamance County Superior Court Judge Tom Lambeth heard testimony last week in the matter of North Carolina Department of Health and Human Services vs. Ace Speedway, which drew national attention this spring when it held a series of racing events despite Phase 2 limitations implemented by the state to minimize the spread of COVID-19. Lambeth anticipates having a decision on whether to remove a temporary restraining order against Ace Speedway by 5:00 p.m. on Wednesday. 

On Friday, June 19, an Alamance County court heard arguments in the matter of North Carolina Department of Health and Human Services vs. Ace Speedway Racing, Ltd., as the governing body attempted to determine whether the state had overstepped its bounds in hitting Alamance County’s Ace Speedway with a recent cease-and-desist order. 

Despite statewide restrictions limiting the number of people in a specific place as North Carolina attempts to continue overcoming the effects of the COVID-19 pandemic, Ace Speedway elected to reopen at full capacity earlier this spring, opening up its stands to thousands of spectators. The decision violated North Carolina’s Phase 2 of its reopening plan, which barred any events featuring more than 25 spectators at a sporting venue. 

As Ace Speedway became a dividing cause for the varying political factions of the COVID-19 pandemic, the local business soon found itself in the crosshairs of North Carolina Governor Roy Cooper and his administration, who first attempted to have local authorities in Alamance County cite the speedway and force it to halt operations. 

Following a statement from Alamance County Sheriff Terry Johnson indicated he would not cite Ace Speedway, NCDHHS forced Ace Speedway to halt activities with fewer than 25 spectators. That led to the court hearing on Friday before Alamance County Judge Tom Lambeth, which was held in the Alamance County Commissioners meeting room in order to allow live streaming video of the hearing. More than 5,000 people tuned into the Alamance County Youtube page to view the proceedings.  

Friday’s hearing included a total of five live witnesses, including Sheriff Terry Johnson, Alamance County health Director Stacie Saunders, Ace Speedway co-owners Jason and Robert Turner, as well as Alamance County Sheriff’s Office Major of Operations Jackie Fortner, who was alongside Sheriff Johnson when they served Jason Turner with the Governor’s cease-and-desist order. 

“No one in my office has issued a citation to the Turners,” Sheriff Johnson testified, reiterating the position he made in his statement a couple days prior to the state’s execution of the cease-and-desist order. “We sent a letter to the Governor’s Office (to clarify the charges for enforcement and punishment). We got no response. A phone call was made trying to get clarification on Executive Order 141 and we never got any response. So we took the action that I thought necessary, which was to not write a citation.” 

Fortner testified that Jason Turner got emotional when the cease-and-desist order was served, saying “I’m going to lose everything I’ve got.” 

Health Director Saunders testified that there have been no identifiable new cases of COVID-19 in Alamance County due to the spring races held at Ace Speedway, though she did confirm a positive test in Cabarrus County with a patient that is believed to have attended a race. She added that the overwhelming majority of the spectators at recent Ace Speedway events were from out-of-state, with some racing fans coming all the way from Colorado, Florida, and New York as the case made national headlines. 

“In the last two weeks we’ve seen an increase in daily cases (in Alamance County),” Saunders stated. “We have not identified a case in Alamance County associated or linked to the racing events based on our current cases. DHHS has notified us of one case in another jurisdiction.” 

Andrew Casper, representing Secretary Mandy Cohen of NCDHHS, presented the injunction stopping Ace Speedway from conducting similar events to those they had held that constituted “mass gatherings,” and presented photographic evidence that the Ace Speedway races were not following social distancing guidelines, nor were most spectators wearing masks to avoid the risk of community spread. 

“I want to begin by emphasizing that the Secretary’s action is an unwelcome obligation of duty and commitment to protect the health and welfare of all North Carolinians,” Casper said. “Neither Secretary Cohen nor Governor Cooper want to restrict the operation of businesses - particularly businesses like Ace Speedway that have been long-standing fixtures and gathering points in their communities. Secretary Cohen and Governor Cooper also do not take lightly the economic hardship the public health measures they have been forced to impose have upon individuals like Robert and Jason Turner who own and operate, or work in businesses. That is why Secretary Cohen and Governor Cooper want to fully reopen businesses as soon as public health circumstances allow it.”

“But even as they sympathize with and recognize these hardships, Secretary Cohen and Governor Cooper also remain steadfast in their belief that public health circumstances demand these restrictions stay in place. Even since our last meeting, the adverse impact of COVID-19 on Alamance County and all North Carolinians has become more acute.” 

Casper indicated that there were four specific reasons that events at Ace Speedway pose a significant increase of COVID-19 spread. 

“One (of the reasons) is the large size of the gatherings. They are anywhere from 100 individuals to 19,000 individuals,” Casper explained. “Second, these events involve increased respiratory effort. 

The plaintiffs introduced photographs that showed individuals cheering and yelling at the races, which increases the risk of spreading COVID-19 by expelling droplets. 

“Another circumstance that increases the risk is being in close physical proximity,” added Casper. “These events - the studies that are referenced in these peer-reviewed articles which she (Dr. Cohen) relies on - are events where people were in close physical proximity for an extended period of time, such as a religious gathering or a funeral. These are peer-reviewed articles that are examining particular events, and discuss why these types of events - large gatherings, close physical proximity, cheering and yelling, respiratory effort - increase the risk of spreading COVID-19.”

Attorney Chuck Kitchen, representing the Turners in the matter, disputed not only the fact that a state of emergency currently exists, but also the science formulating the state’s opinion and decision-making on COVID-19-related regulations and punishments. 

“There’s no question COVID is a bad germ,” Kitchen said. “And there’s no question there’s a pandemic worldwide. 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.”

“He (the plaintiff’s counsel) is alleging these are peer-reviewed articles (basing NCDHHS’s science). There is nothing in the affidavit that I’m seeing, or the declaration that I’m seeing, that indicates they are peer-reviewed articles, or that she (Dr. Cohen) is relying on them,” Kitchen stated. “She states them as facts in the affidavit, and they are not facts which she has personal knowledge of. They are facts out of court. They are hearsay, and they are irrelevant.” 

“I certainly would disagree with you that they (the peer-reviewed articles on COVID-19) are irrelevant. They are definitely dealing with instances of spread of coronavirus based on some events,” Judge Lambeth said in response. 

Robert Turner testified that without the ability to host racing events, Ace Speedway will go out of business and the brothers will lose their livelihood, as well as much of their personal assets. The state doesn’t dispute the fact that the Turners could face financial harm, but contend that protecting public safety during a pandemic in North Carolina’s biggest priority at the present time. 

“It’s pretty much a death wish,” Robert Turner said in regards to the NCDHHS actions. “We can’t operate. We can’t maintain the facility, or pay our bills, without the revenue that the race track and racing brings.” 

Although a temporary restraining order remains in effect for Ace Speedway, Judge Lambeth is expected to release his decision on the matter by 5:00 p.m. on Wednesday afternoon.