17 Memphis restaurants sue health department, county government to reopen during COVID-19 closure

SHELBY COUNTY, Tenn. — Seventeen Memphis area restaurants are suing the Shelby County Health Department in federal court to reopen their doors. Attorneys claim the restaurants were singled out because of a categorization.

In the two lawsuits, the businesses are considered limited-service restaurants and bars which means 50 percent or less of their revenue comes from prepared food.

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The owner of Alchemy, Nick Scott, told FOX13 it isn’t fair to single them out because other restaurants right across the street can open their dining rooms, while he’s limited to take out only.

Scott said that’s not enough to pay his bills or his staff.

“This has proven to be one of the biggest hurdles we’ve ever had to deal with,” he said.

Scott said the latest health directive closing bars isn’t fair when some of those restaurants sell food too.

“For them to come in and say you know if you don’t close down now, we’ll have a representative from another agency come and close you down based on a categorization, not based on any kind of the practices that we’re doing to follow the guidelines, I don’t believe that to be right,” Scott told FOX13.

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Scott is one of 17 restaurant owners represented in two different federal lawsuits filed Monday against the Shelby County Health Department and county government.

Attorney Robert Spence represents 9 restaurants in one lawsuit. He claims the directive violates their first amendment rights to assembly and 14th amendment rights of equal protection.

The suit states “there is no reliable scientific evidence that limited-service restaurants and/or bars in Shelby County, Tennessee pose more of a threat to the public health with regard to the spread of COVID-19 than full-service restaurants.”

Attorney Randy Songstad represents the other 8 restaurants in another lawsuit and he claims this directive violates their 5th and 14th amendment rights.

“If they’re going to shut them down, fine but pay them – you can’t take it without paying them,” said Songstad. “And you shut them down, these people are not going to make it two months. They’ve already been shut down once and if they have gotten their PPP money from the government, it’s going to be a problem if they get shut down again and they haven’t spent all the PPP money during this term.”

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In a statement to FOX13, County Mayor Lee Harris said bars are social settings, and social distance is one of the strategies for slowing the spread of COVID-19.

He said in part, “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.”

But Songstad said tourist attractions like Graceland, the National Civil Rights Museum and Beale Street are high traffic areas, and they’ve been allowed to remain open.

“They’re picking on mom and pop [businesses] instead of doing something different,” he said. “We can have equal protection and equal enforcement. But don’t shut someone’s business down.”

Both lawsuits are seeking damages and a temporary restraining order against the health directive.

FOX13 checked and got additional information from Assistant Director Tabatha Blackwell at the Tennessee Alcoholic Beverage Commission who said: “there is statutory language that exempts establishments located in the Beale Street Historic District from meeting any food sale percentages in order to obtain a full-service restaurant license.”

Blackwell went on to say that language “provides that establishments within a national historic landmark district do not have to meet the foodservice requirements normally expected of a restaurant.”

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