by James Coleman —

As a post-Thanksgiving COVID-19 surge continues to tear through the state and the nation, the Shelby County Commission voted 8-5 on Monday, Dec. 21, to approve a fine for businesses in violation of county health directives, like mask wearing. 

The move is an effort to put more teeth into efforts to tamp down the surging rate of infections in the county.

The ordinance authorizes investigators from the Shelby County Health Department to issue a $50 fine to scofflaw businesses flouting mandates. It amends Chapter 8 of the county’s business regulations with Article 19, which directs pandemic-related health directives. An add-on to the Dec. 16 meeting, it goes into effect on Dec. 26.

“I support going after the very few bad actors in business with the aim of keeping our hospitals from overfill; protecting our lives so we don’t have useless deaths that we can prevent; and threading the needle so that we can keep our community open,” said Commissioner Brandon Morrrison, voicing her concern over individual rights.

Applying to business across the board in Shelby County, individuals will not be subject to fines. The measure is viewed as a middle ground between shutting a business down and criminally charging its owner, or a laissez-faire approach.

“The legislative intent, at least in my supporting this, is to keep businesses open, to have hospitals operating optimally and to avoid needless deaths. Though I can’t support the stay at home order the way it is, I do support giving a specific penalty to those businesses, not individuals, who are bad actors. There are not very many of them, so I hope this will allow more businesses to stay open,” said Morrison.

Many businesses – particularly small – have been hard hit by the pandemic. Restaurants have fared worse than most due to capacity and mask-wearing mandates that intrude on the dining experience. They are widely viewed as places where the virus can easily spread. 

“I think this is all encompassing. I think we just use restaurants as examples. This does not solely apply to them. I think this is just any business,” said Commissioner Van Turner, who sponsored the resolution.

The scope of the ordinance is limited to the pandemic and contains a sunset provision. It kicks in when any of the criteria are met: 70% of county citizens have been vaccinated; all hospitals in Shelby County have an ICU capacity of 75% or less for a minimum of two weeks; or the date of June 2021.

Fines can be appealed at Division 14 of the Shelby County Court System, which is authorized to reduce or retract the penalties.

“That’s based on evidence submitted to the court. That takes it out of our legislatives hands and puts it in a judicial hand. I think this gives relief to those folks who say, it’s the individual, not the restaurant.’ I think you can argue that in front of the environmental court, said Turner.

The approach drew the praise of Wayne Tabor of the Metropolitan Memphis Hotel and Lodging Association, who texted Turner prior to the vote.

“They just wanted the ability to prove their case in front of a court of law. They like the fact that it’s spelled out in this ordinance. That’s a yes from the leader of the hotel association,” said Turner.

Commissioner Mick Wright sought to amend the resolution to reduce the fine from $50 to $5. Commissioner Amber Mills seconded the motion. It failed on an 11-2 vote.

“I respect my colleagues, but moving to five dollars doesn’t get us where we need to go in terms of making sure we are trying to reduce the transmission as well as provide an opportunity for those bars, retail, restaurants, what have you to work with us in enforcing social distancing and wearing masks,” said Commissioner Willie F. Brooks, Jr.

In addition to Turner, voting in favor of the resolution were Willie Brooks, Edmond Ford, Jr., Eddie Jones, Mickell Lowery, Reginald Milton, Tami Sawyer and Michael Whaley. Voting against were Mark Billingsley, David Bradford, Morrison, Mills and Wright.

Not all proposals to tamp down the spread of the virus have met with approval. Yesterday, the health department backed down on a proposed county-wide stay-at-home order after receiving pushback from local restaurant owners and politicians.

There have been 62,334 COVID-19 infections in Shelby County, resulting in 821 deaths. There are 6,929 active cases. Tennessee currently ranks second in the nation behind Oklahoma in active cases with 138 cases per 100,000 as of Monday evening.