Alamance judge rules Ace Speedway must close after NC DHHS sues the race track

An Alamance County judge ruled Thursday that Ace Speedway has to temporarily close.

Superior Court Judge D. Thomas Lambeth, Jr., made the decision during a hearing at the Alamance County Criminal Courts building.

Dr. Mandy Cohen, secretary of the state’s Department of Health and Human Services, sued Ace Speedway and its owner-operators Robert and Jason Turner Wednesday, seeking a temporary restraining order to restrict racing on the Alamance County track.

The department insists the speedway abide by Gov. Roy Cooper’s reopening plan, now in Phase Two, which limits gatherings to 10 people indoors and 25 outdoors.

“There is a risk of irreparable harm if the races are allowed to occur,” DHHS attorney Andrew Kasper said during the hearing.

In making his ruling, Lambeth agreed while adding the decision to close some businesses while allowing others to open is a difficult and stressful matter for the state’s leaders during the pandemic.

“I am certain that the governmental leaders across this country are trying their best, just as our local leaders are, to keep our people healthy but to also let people try to work,” Lambeth said. “I don’t think anybody takes delight in having a business not being able to have people come to their establishments, Ace Speedway included. But it is clear, and Dr. Cohen has verified in her complaint, the documents make it very clear that there is an imminent health hazard in our state and in our county.”

Lambeth called for another hearing on the matter June 19.

The speedway had planned to hold races on Saturday night and on June 19. But, after Lambeth’s decision, Ace Speedway posted on its Facebook page those events are canceled.

“My clients have been trying to keep everyone safe,” Raleigh attorney Chuck Kitchen, who represents Ace Speedway, said after the hearing. “They’ve met with health officials and have been doing everything they’ve been told to so.”

In court, Kitchen argued Gov. Cooper’s executive order is unconstitutional.

“This order is attempting to keep my clients from earning a living,” Kitchen said during the hearing.

After the decision, Kitchen said he had little time to prepare for Thursday’s hearing and looks forward to next week’s hearing, when witnesses will testify. The speedway’s owners will attend.

“It’s very tough on people when the government shuts you down,” he said. “If you’re just a person in Alamance County trying to make a living, it’s tough. It’s a private business. It costs money to operate. ... You’ve got to make money.”

Ace attorney says speedway is being singled out

The state’s order against Ace Speedway would allow it to operate if it presents a plan that is approved by DHHS as to how it would be in compliance with the social restrictions currently in place by Cooper’s executive order.

Kitchen said those restrictions aren’t reasonable and won’t allow Ace Speedway to operate.

“If the state gives reasonable control measures, they will abide by those control measures,” Kitchen said.

Kitchen also questioned why the state was going after Ace Speedway when he said “last weekend, nine to 12 races across North Carolina operated with spectators present.”

When asked during a news conference Monday about other speedways operating with spectators in the stands, Cooper said he wasn’t aware of any others.

Kasper said one new complaint about another speedway was filed this week. He also said DHHS has been in contact with “six large speedways” around the state about how to operate while staying in compliance. He said some are operating without spectators and others are allowing spectators to attend if they stay in their cars throughout the event.

311 Speedway in Stokes County has posted its plans to hold races on Saturday night with spectators in attendance.

Hickory Motor Speedway announced Thursday it will hold racing on Saturday but with no spectators in attendance, due to state restrictions.

The suit against Ace Speedway cites a report from the Burlington newspaper in which Robert Turner said, “I’m going to race and I’m going to have people in the stands. ... And unless they can barricade the road, I’m going to do it. The racing community wants to race. And they’re sick and tired of the politics. People are not scared of something that ain’t killing nobody. It may kill .03 percent, but we deal with more than that every day, and I ain’t buying it no more.”

Kitchen argued that, because that quote is listed in the complaint, that DHHS is acting against Turner because he spoke out against the government and is therefore violating his First Amendment right to free speech.

Ace Speedway’s large crowds

On May 23, the speedway held a race with packed crowd nearing 4,000 spectators, few of whom wore face coverings. Ace did so again on May 30, the suit said, ignoring a request from the Alamance County sheriff that it observer Cooper’s order. The sheriff has since declined to enforce restrictions on the crowd size.

As of Thursday afternoon, DHHS had reported 39,481 cases of COVID-19 statewide, along with 1,064 deaths. Alamance County had 581 reported cases with 23 fatalities.

“There is no applicable First Amendment right to create an imminent and significant health hazard by flouting a valid abatement order,” the suit said.

A lone protester showed up as the hearing began, carrying a sign that read, “Let Ace Race.” He stood more than three hours downtown with his sign.

“I think it’s wrong what they’re doing,” said Stephen James of King. “There were over 20 tracks open the first weekend and they singled out Ace Speedway. I’ve been to all three races and never felt uncomfortable or anything. If you can have 800 people at Walmart, why can you not have us at a speedway?”

James said he will look for another open racetrack this weekend.

“Gov. Cooper got out and marches with the protesters, right next to them,” he said. “But we can’t go to the racetrack.”

Rep. Mark Walker, a Republican Congressman whose district includes Alamance County, blasted Cooper for his rules that led to Ace Speedway closing.

“Instead of providing solutions for the million North Carolinians out of work and a hurting state economy, Governor Cooper, in targeting local Ace Speedway, has shut down yet another business reminding our state that his authoritative grip knows no bounds,” Walker said in a statement. “Cooper’s ‘do as I say, not as I do’ hypocrisy needs to end, allowing our state’s businesses to fully reopen and get back to work.”

This story was originally published June 11, 2020 at 11:19 AM with the headline "Alamance judge rules Ace Speedway must close after NC DHHS sues the race track."