Enforcement Uncertainty

Cumberland Avenue crosswalk

Enforcement Uncertainty

As a new restriction on alcohol sales in Knox County takes effect, questions remain about how authorities will address businesses that don’t comply.

by scott barker • September 18, 2020
Cumberland Avenue.

The Knox County Board of Health’s order requiring bars and restaurants that sell alcoholic beverages to close at 11 p.m. daily took effect shortly after midnight this morning without clarity about enforcement.

Some Board of Health members say tougher enforcement is needed to stem the spread of COVID-19.

The board approved the closure order, which expanded a previously approved measure that applied only to bars, by an 8-1 vote on Wednesday as part of the county’s coronavirus pandemic response.

Authorities relied on education and persuasion rather than citations to enforce previous closure orders, but the return of students to the University of Tennessee campus and the recommendation of the White House’s coronavirus response coordinator has some members calling for tougher action. 

Teenagers and young adults have accounted for more than half of the new COVID-19 cases in Knox County over the past two weeks, according to the Knox County Health Department. 

Board member Dr. Patrick O’Brien said he checked out the Cumberland Avenue area adjacent to the UT campus and other nightlife centers last Saturday. He told his colleagues patrons were unmasked and crowded together, and that the experience converted him from an education-centered approach to advocating for enforcement.

“I don’t see that people should be arrested, but a few citations of either a business or of individuals may be in order to make sure we can change this,” he said.

Violating a public health order in Tennessee is a Class C misdemeanor, punishable by a fine of up to $50 and a maximum of 30 days in jail. So far, the Knox County Health Department and law enforcement agencies have not resorted to legal measures for those violating orders.

That could change under the new order. “Clearly, it’s not working,” said board member Dr. Maria Hurt.

Knox County Mayor Glenn Jacobs, a member of the board and the only one to vote against the order, said he’s worried about enforcement.

“Across the country, we have seen confrontations between the police and the general public,” he said. “At this point in time, we don’t need to do that unnecessarily.” 

What enforcement of the order will look like is unclear. 

At Wednesday’s meeting, Knoxville Police Chief Eve Thomas told board members her agency would follow their wishes. Most of the establishments covered by the order are inside the city limits. “Is it citations? Arrests? It’s whatever you decide enforcement needs to be,” she said.

Thomas said she hoped to meet with Knox County Sheriff Tom Spangler and UT Police Chief Troy Lane to coordinate an enforcement plan.

Spangler, who has been resistant to enforcing public health orders he deems to be unconstitutional, wasn’t at Wednesday’s meeting, and a Sheriff’s Office spokeswoman said he was unavailable for comment yesterday. The city likewise didn’t make any commitments.

“Chief Thomas is still coordinating meetings with our partners to determine what enforcement will look like moving forward,” city Communications Director Kristin Farley said. “As soon as that is determined, we will let the public know.” 

Attorney Greg Isaacs, who wrote a letter to the board on Wednesday seeking a delay in the vote on behalf of several restaurateurs, said the uncertainty is a problem for his clients.

“Obviously, enforcement is the 800-pound gorilla in the room,” Isaacs said in an interview. “The Board of Health has not been very clear on how they intend to enforce all these draconian regulations. It remains to be seen whether poor policy will be poorly enforced.” 

In his letter to the board, Isaacs said he represented establishments owned by some of Knoxville’s most prominent restaurateurs — Randy Burleson, Mike Chase, Thomas Boyd, Aaron Thompson and several others. Among their brands are Aubrey’s, Calhoun’s, Copper Cellar, Barley’s Taproom and Pizzeria, Sapphire Food and Fancy Drinks, SoKno Taco Cantina, Central Flats and Taps, Dead End BBQ and Sunspot Restaurant.

“Collectively, these restaurants have a significant impact on the regional economy as well as employing thousands of Knox County residents that depend on these businesses for their livelihoods and that of their families,” Isaacs wrote. “The proposed resolution would create a significant economic hardship on an industry that has already been devastated by Covid-19 and governmental regulation.”

Isaacs alleged that notice that the board would consider a new regulation wasn’t disseminated to the community in a timely manner, a possible violation of the state’s Open Meetings Act.

He also asserted the rationale for the order — that bars and restaurants serving alcohol can be places where COVID-19 is prone to spread — is unsupported by scientific evidence or data. He said the measure isn’t based on a legitimate government interest and is overly broad and vague.

Knox County Deputy Law Director David Sanders, who represents the board, said the board followed the requirements of the Open Meetings Act and shouldn’t worry about possible litigation. 

“If someone wants to challenge your meeting or the outcome of the meeting based on a violation of the Open Meetings Act, they know where the courthouse is and we’ll see them there,” he told the board.

Sanders also said the board didn’t have to have absolute scientific proof as the basis for regulations.

“This board is not obligated to a standard of perfect science,” he said.
“This board is obligated to have a good reason for coming up with whatever it comes up with.”

Board members were swayed in part by Dr. Deborah Birx, the White House coronavirus coordinator, who during a visit on Tuesday urged officials to close bars or limit the hours for alcohol consumption as a way to limit the spread of COVID-19.

Knoxville Mayor Indya Kincannon, who was invited to address the board, said science has shown that alcohol lowers inhibitions and could cause patrons to ignore social distancing and other health guidelines. 

“Alcohol inhibits people’s ability to exercise good judgment, and good judgment is what we need people to exercise,” she said.

Dr. Martha Buchanan, director of the Knox County Health Department, further explained the reasoning.

“The risk comes with the gathering inside and socializing and consuming alcohol,” she said. “That’s where the risk for COVD occurs. So having that limitation has proven effective in other communities in reducing cases.”

Health Department officials have said individual cases can be traced to people dining together in public, but no large clusters have been associated with restaurants or bars.

Hurt, O’Brien and other board members said they hope the order, which lasts for four weeks, will be short-lived. “We’re all painfully aware that any restrictions on any business is going to impact people we know, our fellow citizens, so we don’t take anything lightly,” Hurt said.