Government Retaliation Prompts Expansion of Lawsuit Against Mayor Cooper and Governor Lee Over COVID-19 Orders

 

A legal complaint brought by a local bar owner against Nashville Mayor John Cooper and Tennessee Governor Bill Lee for violating constitutional rights with their respective orders related to COVID-19 has since expanded due to more recent retaliatory events.

The original complaint was filed in late May, The Tennessee Star reported, with an amended version filed with the U.S. District Court for the Middle District of Tennessee about a month later.

In addition to Mayor Cooper and Governor Bill Lee, the Plaintiff Geoffrey Reid as owner of The Local bar in Nashville, named Tennessee’s Attorney General Herbert Slatery as well as Metro Nashville’s Chief Medical Director Michael Caldwell as defendants in the original complaint.

Events that occurred since have prompted Steve Smith, owner of Kid Rock’s Big Ass Honky Tonk, Honky Tonk Central, the iconic Tootsie’s Orchid Lounge, Rippy’s and The Diner to join as a plaintiff in the complaint.

Some of the recent events caused the addition of a member of the Metro Beer Permit Board, Kia Jarmon, to be named as a defendant in the case.

The 73-page formal complaint detailed the impact to the two plaintiffs, from a personal level that all Tennesseans have endured from “the unprecedented and devastating deprivation of citizens’ fundamental and natural rights, including, the right to travel, the freedom of association, the freedom of religion, the right to be free from illegal seizure, property rights, economic rights and other civil liberties protected by the U.S. Constitution and Tennessee Constitution.”

The use of the defendants “police powers” has also brought economic devastation to Reid and Smith as owners of bars and live music venues that have been shuttered in the name of addressing COVID-19.

By depriving Reid and Smith of their fundamental rights, “the defendants’ orders and actions were not the least restrictive means of addressing the spread and effects of COVID-19 as best evidenced by the unparalleled economic devastation” not to just to the plaintiffs but the state as a whole.

This fact, the complaint states, is further evidenced in the Governor’s office estimates that 15 percent of Tennessee workers have filed for unemployment, retail businesses have lost $870 million in net sales and Tennessee’s GDP has been reduced by $5 billion.

The complaint points to numerous inconsistencies in the defendants’ orders and disparate treatment of individuals and businesses at both the state and local level, and how the orders addressed the population at large and were not targeted at those who were tested positive for COVID-19 or the high-risk population of those aged 65 or older.

There are long-standing established laws and regulations for dealing with communicable diseases by focusing on those who are infected or may be infected.

Instead of following the scientific methods set out in the laws and regulations, the defendants issued orders that certainly were not “with the least inconvenience to commerce and travel,” in accordance with Tennessee law, when they quarantined large segments of the population who were not infected.

As the complaint details, Metro health officials reminded everyone on May 29 to practice social distancing to stop the spread of COVID-19 and to wear face coverings, although emphasized that “face coverings are not a substitute for social distancing.”

The very next day, Mayor Cooper took to Twitter, “I urge all of you to join me from 3:00 to 5:00 pm today at Legislative Plaza for the ‘I will Breath’ rally.”

Of course, this is the event attended by thousands of protesters who did not maintain social distancing and then turned into a violent riot that left many calling for Cooper’s resignation, The Star reported.

The event was followed by several other rallies attended by thousands to tens of thousands of people – events referred to as “super spreader events” in the complaint – in addition to the continuous sit-ins on the Capitol grounds over the past few weeks.

The complaint also maintains that from the Metro Health Director’s very first order, “restaurants and bars were consistently treated differently than other similarly situated businesses and entities,” with “businesses such as grocery stores, gas station stores all government offices, Walmart, Target, Walgreens, Home Depot, liquor stores, hardware stores and other comparable stores and entities were all allowed to remain open without any occupancy restrictions and without being monitored by Metro,” and no report of a citation issued to any establishment that is not a restaurant or bar.

One such example is Phase One of Nashville’s reopening that should have started on Friday, May 8 after meeting the reopening metrics the day before.  Instead, the reopening actually started on Monday, May 11, which obviously puts restaurants and bars at a distinct disadvantage by not being open over the more profitable weekend period.

Revealing the biased sentiments of the non-elected Metro Medical Director Caldwell’s opinion on businesses, he said during a COVID-19 update, “Operating a business in Nashville Davidson County is a privilege, not a right.”

Metro Medical Director Caldwell also told the general counsel for Kid Rock’s during a meeting with several bar owners when it was mentioned that a civil action might be filed, “A lawsuit should not be filed.  I and the Health Department will be around for a long time.”

Caldwell’s response was perceived as a veiled threat against any businesses which desired to exercise their constitutional rights to challenge the reopening plan, according to the complaint.

Caldwell then specifically targeted restaurants and bars located on Broadway over the Memorial Day weekend, but seemingly ignored big box retailers like Home Depot, Lowe’s, Walmart and Target.

Two weeks later, Metro Health Department inspectors again targeted restaurants and bars and issued violations only to those establishments, while ignoring the tens of thousands of protesters.

A Metro Beer Board Inspector was then given a spreadsheet with the names of five businesses to inspect on Broadway.  That inspector revealed that he was sent by the Mayor who was targeting Steve Smith.

Caldwell himself inspected Kid Rock’s on June 13, but no other locations in Nashville on that date.

“Upon claiming that Kid Rock’s was not in compliance with his orders, Director Caldwell demanded that Kid Rock’s close at midnight,” the complaint states.

Without an enforceable order, Kid Rock’s did not close.  So, Caldwell attempted to recruit police officers to assist in closing the establishment.

When that effort failed, Health Department employees returned.

Still unable to effectively close Kid Rock’s, Mayor Cooper and Director Caldwell apparently coordinated with the Beer Permit Board “to hold an unprecedented, emergency meeting in an attempt to unlawfully suspend the licenses of restaurants/bars which committed minor violations.”

During the June 18 Beer Permit Board emergency meeting, several options to deal with the alleged violations were proposed including those of member Kia Jarmon that were dismissed for various reasons.

Eventually, the Board decided that four locations would be issued a citation for a five-day suspension, although they decided not to impose the additional option of a civil penalty.

The plaintiffs assert that during the meeting, it was “evident that Jarmon was biased and not being objective toward the four beer permit holders who were the subject of the complaints.”

After more than one establishment voiced their objections to the unprecedented actions of the Beer Permit Board, the African-American Jarmon took to social media, clearly revealing her bias toward the white business owners with her statement.

“It is WHITE SUPREMACY to say, ‘we broke the rules but you’ve been too harsh on us.’ For hundreds of years, white people have benefited from breaking, bending, and grandfathering rules. . . .As a member of the Beer Permit Board, I wish we’d done more. But I am also mindful that whatever precedent we set will also impact Black business too. For now, take the dang five days. . . .”

Despite demands from the plaintiffs’ attorney that Mayor Cooper remove Jarmon from the Beer Permit Board, he has failed to do so.

The complaint reveals that Reid and Smith, feeling an obligation to do so, continued to pay their employees as they were earning no revenue during the shutdown at a cost of hundreds of thousands of dollars to each of them.

In just two of his establishments, Smith has estimated a loss of $9 million in revenues during the initial shutdown period.

Meanwhile, Mayor Cooper proposed a 32 percent and the Metro Council approved a 34 percent property tax increase.

The amended complaint dated June 26 was filed prior to Mayor Cooper’s announcement July 2 that Nashville would be reverting from Phase Three to Phase Two of the reopening plan.  Effective July 3, all Davidson County bars – known as limited-service restaurants that derive the majority of the revenue from alcohol sales – are shut down for a minimum of 14 days.

As The Star reported, U.S. Senate candidate Dr. Manny Sethi called Cooper’s reopening setback “lunacy,” and local think tank Beacon Center of Tennessee CEO Justin Owen said, “The Mayor has been completely inconsistent and derelict in his duty” when it comes to enforcing violations of his COVID-19 orders.

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Laura Baigert is a senior reporter at The Tennessee Star.