Is the closure of limited-service restaurants in Shelby County arbitrary and irrational, a 14th Amendment violation, or should broad authority be deployed to curb the spread of COVID-19 during a global pandemic?

It’s unlikely the answer will come this week. On Monday U.S. District Court Judge John T. Fowlkes Jr. heard from about half the restaurateurs who are seeking a temporary restraining order after their places were closed by the Health Department. He declined to issue a decision, noting that the same case with another group of plaintiffs will be heard July 27 before U.S. District Court Judge Jon P. McCalla.

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The cases arise from the July 8 closing of limited-service restaurants, which are restaurants where 50% or more of revenue is generated from the sale of alcohol. 

A total of 17 plaintiffs have filed suit and on Monday a group of nine represented by attorney Robert Spence had their day in court after about half an hour was spent arranging spectators, plaintiffs, attorneys and sheets of Plexiglass in the courtroom to meet social distancing guidelines.

Health Department Director Dr. Alisa Haushalter testified that in the days preceding July 4, a group that included Rear Admiral Jonathan Mermin, M.D., of the national Centers for Disease Control visited Memphis. It was one of only 10 places the team visited in the country, because it’s a site where COVID-19 numbers are rapidly rising but could drop with intervention, she said.

She testified that there are more than 16,500 diagnosed cases of COVID-19, with a positivity rate among those tested of 15% and an R-naught, or reproduction, rate of 1.2 in Shelby County. The reproduction rate is the average number of people infected by one positive person.

But, she said, the positivity rate has been as low as 5% – with the desired rate at 10% or lower – and the reproduction rate needs to be 1.0 or less.

One of the specific recommendations Mermin and others had for Shelby County officials was to close bars, then if needed, close restaurants and gyms, Haushalter said.

But the Tennessee Alcoholic Beverage Commission doesn’t have a category for bars as any establishment issued a state license must also serve food, so the decision was made to close limited-service restaurants.

And that makes no sense, Spence argued, returning several times to a particular sore point with the plaintiffs: Beale Street establishments are open. They’re in a historic district and by a Tennessee statute adopted about 30 years ago, don’t have to meet the criteria for a full-service restaurant to be granted the license.

That’s part of what Spence argues is irrational and in violation of the liberty and fairness granted by the 14th Amendment. Jeannette Comans, owner of the Blind Bear, says the ruling even affects her ability to successfully operate a takeout business. She noted that Blind Bear, Silly Goose and Max’s Sports Bar are the only three Downtown places that have been closed.

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“Why would anyone come to me and get to-go when they can walk across the street or down to Beale Street and eat, drink and actually even sit at a bar?” she asked before the hearing. “Well, I can tell you, that’s where they’re going.”

The fate of the entertainment district seems anything but certain, though. Haushalter allowed that she does not have the manpower to check places to determine if they are more bar or restaurant in spirit, and noted that Beale Street remains open because of the state licensure.

“However, we’ll look at it if the numbers keep going up,” she said, and in its memorandum in opposition, the county admits there is a disparity:

“Per Tennessee law, certain businesses operated within national historic landmark districts are eligible to receive restaurant licensure regardless of their percentage of alcohol sales. ... Thus, the businesses in the Beale Street Historic District that Plaintiffs assert are similarly-situated 'bars’ that are not closed under Health Directive 8 are licensed restaurants under Tennessee law,” it reads.

Alchemy owner Nick Scott pointed out that restaurants similar to Alchemy, which he described as a place that specializes in craft cocktails and small plates and has a full menu, are all around him in Cooper-Young and that some simply sell less expensive drinks, which makes them a full-service restaurant by percentage when they are in fact much like his spot.

Comans testified that while she’s sold more food in the past year than she has previously, it would be hard for her to get on the right side of the percentage when her most expensive entrée is $14 and her least expensive drink is $8.

“If you have an entrée and two drinks, then I’m over 50%,” she said.

But at issue is whether COVID-19 is more readily spread in bars than in restaurants, which the county says is the case.

Haushalter said that people cannot wear masks when drinking; that they tend to be more social with groups other than their own when drinking at a bar as opposed to sitting at a table; that alcohol causes people to lose inhibitions that can risk their safety; and that loud bars cause people to speak louder, which more forcefully expels aerosols.

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Spence asked her if she was referring to data or behavior, and in his closing argument stated that there was no data presented to defend the closure directive, just assumptions about behavior. It is illogical that a restaurant that serves less than 50% food should be “burdened” when one that sells more than 50% is not, he said.

“Is there any connection between COVID-19 and the amount of food sold in a restaurant?” he asked.

He also argued that the verbal advice Haushalter said was provided by Mermin and his team did not appear in a written account of the visit, noting that the government can’t just say “I went to a meeting and I heard something.”

But Fowlkes asked him: “We’re in a global pandemic. Why shouldn’t the county be given wide latitude?”

In his closing argument, county attorney Lee Whitwell said it’s crucial the county have such latitude during the pandemic.

“This is difficult line-drawing, but they need discretion,” he said. “They need to be able to approach this problem incrementally.”

It’s not known if the two cases will be combined, but Fowlkes said that one reason he did not rule on Monday was that he did not want his and McCalla’s courts to issue conflicting rulings.