U.S. District Judge John T. Fowlkes Jr. today issued his ruling in the case of limited-service restaurants seeking a temporary restraining order that would allow them to reopen; as expected, his ruling denies the order.

This closes both cases brought by local restaurateurs after they were shuttered by a Health Department directive July 8. On July 29, U.S. District Judge Jon P. McCalla issued his ruling in a case brought by another group of plaintiffs for a temporary restraining order, so it was expected that Fowlkes’ ruling would also deny the motion.

“I’m not surprised,” said Nick Scott, owner of Alchemy, who is part of the group that went before Fowlkes. “I expected it.”

Judge McCalla rules against reopening bars

In his ruling, Fowlkes, like McCalla, recognized that being closed has a profound economic impact on the businesses that have been shut down to dining-room service since July 8 under Health Directive 8, which has now been superseded by Health Directive 9, effective July 26.

But that doesn’t justify a TRO, Fowlkes wrote:

“The Court recognizes the many hardships imposed by Health Order No. 8. However, Defendants’ decision to temporarily close Plaintiffs is legally sound. What is legal may not always be fair, but legality must prevail over fairness.

“As sympathetic as the Court is with Plaintiffs and other businesses adversely affected by COVID-19, sympathy cannot play a role in determining the legality of Health Order No. 8.”

Jeannette Comans, owner of the Blind Bear on South Main, said she doesn’t know what to do now.

“There was a little false hope that maybe we’d get a different ruling, that maybe something was going to happen because (Fowlkes) hadn’t ruled,” she said.

“I haven’t made any plans. I was hoping I didn’t have to. We can’t open, because that would just blow through what little money I have left faster,” she said.

While closed for inside service, the limited-service restaurants are allowed to continue takeout, though virtually none are doing it as they say with other restaurants open, no one is interested in takeout.

Scott said he’ll see if he can open Salt|Soy, the popup sushi restaurant he’s had for more than a year, from his Alchemy space, but he’s uncertain about the legal issues of whether he can use the dining room for that. He knows he can do takeout.

“But is there a possibility of subletting the business to another business? I’m going to look into that and see if they will let me,” he said. “If I only do takeout, I can employee three, maybe five employees at most. If we can operate the dining room, I can bring more people back.”

Independent restaurants ask Health Department for same-day employee testing

Health Directive 9 gives the Health Department more latitude in determining if full-service restaurants that operated more like a bar should close. The Tennessee Alcoholic Beverage Commission issues licenses based on the amount of gross revenue derived from food versus alcohol; places selling 50% alcohol or more have to get the more expensive limited service license.

The new directive gives the Health Department the right to ask for sales figures to see the percentages. It reads:

“Please be prepared to provide 1) the most recent sales numbers that were provided to the Commission for license renewals or sales number for year-to date sales and 2) a “food affidavit” by an owner of the establishment attesting that the numbers submitted are correct.”