DINING

Memphis 'limited service' restaurants sue health department for right to reopen

Jennifer Chandler Katherine Burgess
Memphis Commercial Appeal

Jeannette Comans, owner of The Blind Bear Speakeasy, believes it's unfair that the Shelby County Health Department forced her to close her "limited service" restaurant last week.

Nick Scott, the owner of Alchemy, shares the sentiment. He had to close his Cooper-Young bar and restaurant last week due to its Tennessee Alcoholic Beverage Commission classification as a "limited service" restaurant — a liquor license issued to restaurants whose gross revenue from the sale of prepared food is 50% or less.

Comans and Scott represent two of 17 establishments filing federal lawsuits Monday against the Shelby County Health Department and Shelby County government in attempt to reopen. 

"We are only asking to be treated like every other restaurant," said Comans, citing that the 45 restaurants on the list are mostly small individually owned businesses that many, like hers, have had no known COVID cases associated with their businesses. "If this was really about COVID, Beale Street would be closed."

Jeannette Comans, owner of the downtown Memphis speakeasy Blind Bear, is one of 17 Memphis restaurant owners suing for the right to reopen. Photographed Monday, July 13, 2020, at Blind Bear in downtown Memphis.

More:Memphis bars: Which can stay open and which have to close, according to new directive?

One suit was being filed by attorney Robert Spence of The Spence Law Firm. This suit was filed on behalf of nine restaurants. The restaurants are 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 Hi-Tone Cafe.

"These restaurant owners are not against regulations related to COVID-19," said Spence. "We filed because these restaurants won't make it if they are not allowed to reopen. This directive is on its face discriminatory. There is no scientific evidence or data that says the spread of COVID-19 is greater in a limited-service restaurant versus a full-service restaurant."

Of the nine restaurants, Spence said only one has had any known COVID related cases. "Silly Goose said they had two employees test positive back in June. That is the only incidence," said Spence.

Spence's suit cites the 14th amendment for equal protection and the first amendment for the freedom of assembly.

A second suit was filed by attorney Randy Songstad of The Songstad Law Firm.

Songstad represents eight restaurants. The restaurants and restaurant groups are 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.

"If you take away, you must give it back," said Songstad, referencing that in March, restaurants were given assistance through PPP loan. "Now they are just taking."

The suit notes that bars on Beale Street have not been forced to shut down, “regardless of their ratio of food to liquor sales.” Other tourist destinations like Graceland have also been allowed to open, it says.

“If there is protective purpose behind this Order, it seems to have been side-stepped in favor of the City and County’s need to protect the tourism dollars,” the second complaint reads.

Shelby County Mayor Lee Harris responded to news of the suits by saying the county must continue combating COVID-19. 

"Bar businesses are social settings and social distance is one of our strategies to slow the spread of COVID-19," Harris said in a written statement. "We have to be honest that the numbers are going in the wrong direction and we have to layer additional protections. We have to ensure we have sufficient hospital capacity to treat those in need and we have to give comfort to our school leaders, kids, and families working on how and when to start school."

The Health Department declined to comment on the lawsuits.

Equal Treatment

Comans, Scott and Max Lawhon of Max's Sports Bar said they just want to be treated like any other restaurant.

Comans said the forced closure will be devastating for her business since no government assistance has been offered like when restaurants were forced to close in March.

"We were just now gaining momentum again and almost had a full staff rehired," she said. "This is my livelihood and my employees' jobs. We can't keep doing this to people."

"This is discrimination towards us," said Lawhon, the owner of Max's Sports Bar. "Obviously we are in the middle of a health crisis. We don't want anyone else to have to close down. But why can Beale remain open when we have to close?"

More:Bars on Beale Street remain open. Here's why.

Scott, of Alchemy, said he feels the health department's decision-making process has been "robotic." "The determining factor health officials used shouldn't have even been a consideration. There is no logic behind this. Alchemy is a restaurant."

Alchemy is located in the heart of the Cooper-Young District of Midtown Memphis

Daniel Masters said his business model at Silly Goose has evolved from late night bar to a sit down only restaurant in only a few months due to COVID-19.  "Our staff has learned and improved safety criteria, even closed our patios in order to have full control of guests interactions prior to this close down ruling.  We were far from perfect when this started, it’s hard to change the nature of your industry," said Masters. "This isn’t a real solution it’s a show." 

Both suits seek damages

Both suits seek damages and ask for some sort of restraining order against the health directive.

The first suit, whose plaintiffs include Blind Bear and Silly Goose, notes that some of the businesses received payroll protection program loans from the federal government, meaning they may have to continue paying all employees or risk defaulting on those loans. However, if they are closed, they receive no income to offset expenses such as utilities, insurance and other operating costs.

The plaintiffs seek damages and a temporary restraining order against the health directive. They also request a permanent injunction prohibiting Shelby County from enforcing any restriction in the health order and directive “which violates Plaintiffs’ rights under the United States Constitution.”

The second suit, whose plaintiffs include TJ Mulligans and Hadley's Pub, says the owners of these restaurants and bars are now completely unable to profit from their private property, something the lawsuit charges is a violation of the “takings clause,” which “bars government actors ‘… from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’”

The plaintiffs are asking for compensatory damages and for a permanent injunction against the closure order unless there is a mechanism to provide compensation for the affected businesses.