ARJN #3 v. Cooper

• Decision Date: 05 February 2021
• Docket Number: No. 3:20-cv-00808,3:20-cv-00808
• Citation: 517 F.Supp.3d 732
• Court: U.S. District Court — Middle District of Tennessee
• Parties: ARJN #3, d/b/a Jonathan's Grille, et al., Plaintiffs, v. John COOPER, et al., Defendants.

517 F.Supp.3d 732

ARJN #3, d/b/a Jonathan's Grille, et al., Plaintiffs,

v.John COOPER, et al., Defendants.

No. 3:20-cv-00808

United States District Court, M.D. Tennessee, Nashville Division.

Filed February 5, 2021

Kathryn B. Byrd, Johnson & Byrd, PLLC, Nashville, TN, for Plaintiffs.

Allison L. Bussell, Mallory Schneider Ricci, Michael R. Dohn, Metropolitan Legal Department, Nashville, TN, for Defendants.

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendants’ Motion to Dismiss (Doc. No. 42, "Motion"), supported by a Memorandum of Law (Doc. No. 43). Plaintiffs filed a response in opposition, (Doc. No. 49), and Defendants replied (Doc. No. 50). For the reasons set forth below, Defendants’ Motion will be GRANTED.

BACKGROUND¹

In response to COVID-19 pandemic, Defendants issued numerous orders in attempting to "flatten the curve." (Doc. No. 38 at ¶ 2).² On March 15, 2020, the Nashville Davidson County Metropolitan Board of Health held a special public meeting and voted to issue a Declaration of Public Health Emergency related to the ongoing COVID-19 pandemic. (Id. at ¶ 3). The declaration directed the Chief Medical Director of Health, Dr. Michael Caldwell, to "act as necessary to maintain and protect the public health" in a manner consistent with the authority derived from state and local law and to limit the operation of businesses licensed to serve food or beverages. (Id. ). Pursuant to that declaration, Dr. Caldwell issued a series of orders over the following months that placed restrictions on certain businesses, including food service businesses, in an announced effort to limit the spread of COVID-19. (Id. at ¶¶ 4-31).

Dr. Caldwell issued the first of these orders on March 17, 2020. This initial order ("Order 1") limited bars and restaurants to operating at fifty percent (50%) capacity and also limited bars within restaurants to ten percent (10%) capacity. (Id. at ¶ 4). On March 20, 2020, Dr. Caldwell issued an amended Order 1, ("Order 1A") which prohibited restaurants from offering dine-in services, thereby relegating restaurants to sustain their businesses based on take-out orders only. (Id. at ¶ 6). On that same day, Dr. Caldwell issued Order 2, which suspended operations of gyms and fitness facilities. (Id. ).³

On April 23, 2020, Defendant Cooper released the "Roadmap to Reopen Nashville" that implemented a four-phase plan to reduce the restrictions on businesses in the event certain metrics were met. (Id. at ¶ 9). On May 8, 2020, Dr. Caldwell issued Order 5, which encompassed Phase 1 of the reopening plan and allowed restaurants to open at fifty percent capacity but required bar areas within restaurants to remain closed. (Id. at ¶ 13). On May 22, 2020, Defendant Caldwell issued Order 6, which encompassed Phase 2 of the reopening plan and allowed restaurants to operate at a seventy-five percent capacity but required bar areas within restaurants to still remain closed. (Id. at ¶ 14). Order 6 allowed businesses such as gyms to open at fifty percent capacity. (Id. ).

On May 30, 2020, Nashville civil rights activists and others held an "I Will Breathe Rally" in response to the death of George Floyd at the legislative plaza in downtown Nashville. (Id. at ¶ 16). During the rally, thousands of protestors marched condemning police brutality and calling for change. (Id. ). That same day, Defendant Cooper released a public statement urging individuals to attend the "I Will Breathe Rally" with no mention of concerns of spreading COVID-19. (Id. at ¶ 17).

On June 22, 2020, Dr. Caldwell issued Order 7, which encompassed Phase 3 of the reopening plan and allowed restaurants to operate at seventy-five percent capacity and allowed bar areas within restaurants to open at fifty percent capacity. (Id. at ¶ 18). On July 2, 2020, Dr. Caldwell issued Order 9, which reverted back to Phase 2 of the reopening plan with modifications. (Id. at ¶ 21). Order 9 required any food service business with more alcohol sales than food sales, defined as a Limited Service Restaurant ("LSR(s)") by Tenn. Code Ann. § 57-4-102(22), to close completely. (Id. ). Additionally, Order 9 required any food services businesses that did not have more alcohol than food sales, defined as a Full-Service Restaurant ("FSR(s)") by Tenn. Code Ann. § 68-14-703(9), to revert back to a maximum operating capacity of fifty percent capacity. (Id. ). Just two days later on July 4, 2020, the Black Lives Matter organization hosted a rally at Bicentennial Mall State Park which brought over 10,000 people to the downtown area. (Id. at ¶ 23).

On July 17, 2020, Dr. Caldwell issued Amendment 1 to Order 9, which extended the closure of LSRs. (Id. at ¶ 24). On July 23, 2020, Dr. Caldwell issued Amendment 2 to Order 9, which required FSRs to close at 10:00 p.m.; however, Amendment 2 did not require businesses such as gyms to close at a particular time. (Id. at ¶ 25).

On August 16, 2020, Dr. Caldwell issued Order 11, which required LSRs to operate at the lesser of 50 percent maximum capacity or 25 patrons on the premises (and subject to social-distancing requirements). (Id. at ¶ 28). Order 11 also required FSRs, like Plaintiffs, to operate at the lesser of 50% capacity or 100 patrons per floor (and subject to social-distancing requirements) and a maximum of six people per table. (Id. ).

On September 30, 2020, Dr. Caldwell issued Order 12, which continued to limit capacity of FSRs to fifty percent, but extended the required closing time until 11:00 p.m. (Id. at ¶ 31). Order 12 also allowed gyms to operate at fifty percent capacity with no particular closing time required. (Id .). Order 12 as originally issued will be referred to below as simply "Order 12," as distinguished from any amended and restated version of Order 12.

The Court will take judicial notice of the following health orders that were issued after the filing of the Amended Complaint. On November 2, 2020, Amended and Restated Order 12 went into effect and limited the capacity of FSRs to 100 patrons per floor and 100 patrons outdoors.⁴ On November 20, 2020, Dr. Caldwell issued the Second Amended and Restated Order 12, which included the same restrictions on FSRs did as the First Amended and Restated Order 12.⁵ On November 30, 2020, Dr. Caldwell issued Third Amended and Restated Order 12, which again limited the capacity of FSRs to 100 patrons per floor and 100 patrons outside but also prescribed that the number of patrons on the premises shall not exceed 5fifty percent of the maximum capacity.⁶ On December 14, 2020, Dr. Gill Wright, acting as Interim Chief Medical Director of Health,⁷ issued the Fourth Amended and Restated Order 12, which included the same restrictions on FSRs as did the Third Amended and Restated Order 12.⁸ On December 31, 2020, Dr. Wright issued the Fifth Amended and Restated Order 12, which included the same restriction on the capacity of FSRs (100 patrons per floor and 100 patrons outside) and also prescribed that the number of patrons on the premises shall not exceed fifty percent of the maximum capacity.⁹ On February 1, 2021, Dr. Wright issued the Sixth Amended and Restated Order 12, which included the same restrictions regarding capacity but extended the closing time of FSRs that serve alcohol until 12:00 a.m.¹⁰ FSRs that do serve alcohol are not required to close at a certain time. The Sixth Amended and Restated Order 12 is the health order that is currently in effect as of the date of the issuance of this Opinion.

On September 18, 2020, Plaintiffs ARJN#3, LLC d/b/a/ Jonathan's Grille and Jonathan's Grille-Green Hills, LLC d/b/a Jonathan's Grille filed suit against Defendants John Cooper, Dr. Michael Caldwell, Leslie Waller (in their official capacity), and the Health Department for Metropolitan Nashville-Davidson County. (Doc. No. 1). On October 29, 2020, Plaintiffs filed the Amended Complaint, which asserts that Defendants’ Health Director Orders ("Orders") place severe restrictions on bars and restaurants that are in violation of Plaintiffs’ rights protected by the United States Constitution and the Tennessee Constitution. Specifically, Plaintiffs assert that the restaurant curfew and occupancy restrictions encompassed within Order 12 violate Plaintiffs’ right to equal protection under the law and substantive due process rights as guaranteed by the United States Constitution and the Tennessee Constitution. (Id. at ¶ 34). Plaintiffs seek declaratory relief in the form of a declaration that the curfew and occupancy restrictions set forth in Order 12 are in violation of Plaintiffs’ above-mentioned constitutional rights, and injunctive relief enjoining Defendants from enforcing the curfew and occupancy restrictions set forth in Order 12.

On November 12, 2020, Defendants filed the instant Motion to Dismiss. (Doc. No. 42). Plaintiffs responded on November 26, 2020, (Doc. No. 49), and Defendants filed a reply on December 3, 2020 (Doc. No. 50). Thus, the Motion is ripe for adjudication.

LEGAL STANDARD

For purposes of a motion to dismiss brought pursuant to Rule 12(b)(6), the Court must view all the factual allegations in the complaint as true. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679, 129 S.Ct. 1937. A legal conclusion, including one couched as a...