Memphis bars’ restraining order denied
Limited-service restaurants in Memphis must remain closed after a federal judge Wednesday denied a request for a temporary restraining order against the Shelby County Health Department.
U.S. District Judge Jon Mccalla wrote in his ruling that, “The global COVID-19 pandemic warrants special consideration. It is well settled that ‘a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.’”
Mccalla heard arguments regarding the request for a temporary restraining order Monday morning. It was the second of two hearings in separate lawsuits after the owners of 17 limited-service restaurants filed federal lawsuits July 13 against the Shelby County Health Department and Shelby County government in an attempt to reopen.
United States District Judge John T. Fowlkes Jr. heard plaintiffs in the first suit on July 20.
On July 16, 45 Memphis restaurants were forced to close following a directive by the Shelby County Health Department due to climbing coronavirus cases in the county.
These establishments, which the Health Department refers to as “bars,” are classified by the Tennessee Alcoholic Beverage Commission as a “limited service” restaurant — a liquor license issued to restaurants whose gross revenue from the sale of prepared food is 50% or less.
“We are only asking to be treated like every other restaurant,” Blind Bear Speakeasy owner Jeannette Comans said. She said the 45 restaurants on the list are mostly small, individually owned businesses and many, like hers, have had no known COVID-19 cases associated with their businesses. “If this was really about COVID, Beale Street would be closed.”
Two separate suits were filed.
One was filed by attorney Randy Songstad of the Songstad Law Firm, the suit that included the request for a temporary restraining order.
Songstad represents eight restaurants: T.J. Mulligan’s US 64, T.J. Mulligan’s, T.J. Mulligan’s Cordova, Hadley’s Pub, Tavern 018, Brewskis Sports Bar and Grille, Murphy’s Public House and Canvas of Memphis.
Songstad claims the county’s actions violate the Fifth and 14th amendments.
Monday, several bar owners testified that they would be put out of business within a matter of months if they could not reopen.
Operating takeout or curbside service wouldn’t be economically feasible, they said, but would only cause them to lose money faster.
“These people have lost everything,” Songstad said. “We’ve heard testimony from the plaintiffs that they’ve suffered irreparable harm and injury due to this closure. They’re on the brink of losing their businesses completely.”
The judge also heard testimony from Shelby County Director of Health Alisa Haushalter about the spread of COVID-19 in the area.
“Our ultimate goal is to reduce deaths and illness as a relation to COVID, and we know we have ongoing community transmission,” Haushalter said. “One of the areas we know transmission can occur based on national evidence is in social settings. Particularly behaviors that can occur in a bar have a high likelihood of causing transmission.
“When people drink alcohol they are less likely to follow rules, less likely to consider the social distancing requirements, they tend to get louder and tend to tell jokes and other things they might not when they’re not drinking, and all of those things contribute to the transmission of COVID. COVID is spread when people talk, sing, laugh.”
Bars are also social settings where people mingle, Haushalter said, and are unlikely to wear masks.
In his ruling, Mccalla wrote that “Shelby County’s decision to close certain bars and restaurants is not ‘arbitrary and capricious’ or ‘unreasonable.’”
“Defendants’ actions reflect a concerted effort to respond reasonably to a pressing health crisis,” Mccalla wrote.
His ruling considered testimony from Haushalter and David Sweat, deputy director of the Health Department, that “limited service restaurants pose a greater risk for the spread of the COVID-19 virus than other restaurants,” Mccalla wrote.
The ruling does note that the bar owners “will suffer devastating economic injury if the Closure Orders remain in effect
The other suit was filed by attorney Robert Spence of The Spence Law Firm and heard on July 20. This suit was filed on behalf of nine restaurants: The Blind Bear Speakeasy, Alchemy, Max’s Sports Bar, The Silly Goose, Dru’s Place, Brewskis Sports Bar & Grille, Stage 64 Lounge, Cheers of Millington and Hitone Cafe.
In his pre-hearing brief, Spence wrote: “The disparate treatment of the owners of limited service restaurants in the absence of any data that these types of restaurants are a source of COVID-19 transmissions at a greater rate than restaurants, (the regulation of one but not the other) is classic arbitrary and unreasonable governmental behavior.”
Spence’s suit cites the 14th Amendment for equal protection and the First Amendment for the freedom of assembly.
A motion from the plaintiffs stated that customers not allowed in the closed restaurants will still go out — just to another establishment.
“As detailed in the numerous declarations filed by Plaintiffs, customers turned away from their various closed restaurants do not lessen the number of people engaging in social interaction — and on-site dining and drinking,” the motion states.
In his closing arguments, Spence argued that there is no data supporting the claims that restaurants selling less than 50% in food sales cause the spread of COVID-19 more than a restaurant whose revenue comes from more than 50% sales in food.
Both suits noted that bars on Beale Street were not forced to shut down, regardless of their ratio of food to liquor sales. According to the Tennessee Alcoholic Beverage Commission, a state statute exempts establishments located in the Beale Street Historic District from meeting any food sale percentages to obtain a full-service restaurant license.
However, many restaurants on Beale Street were later closed by the Health Department through a directive issued Friday, which said full service restaurants with gross annual revenue from the sale of prepared food that is 50% or less than the gross annual revenue from the sale of alcoholic beverages must be closed regardless of their licensure.