Nashville 'transpotainment' lawsuit claims Metro COVID-19 shutdowns are illegal, discriminatory

Multiple Nashville "transpotainment" businesses filed a lawsuit against the city Wednesday, alleging Metro overstepped its bounds when it cited and shut down their operations during the COVID-19 pandemic.

The businesses are asking a judge to grant them a temporary restraining order from Metro, which would effectively prevent city officials from issuing citations, closing the businesses or "threatening arrest" related to Metro health department orders referencing "transpotainment" vehicles.

The owners of Off The Wagon Tours, Honky Tonk Party Express, Sprocket Rocket, Hell on Wheels Nashville, and Nashville Party Barge claim in the lawsuit that the health department lacks the authority to regulate their businesses, and that forcing them to close due to COVID-19 while allowing other tour operations to continue is discriminatory. 

Gary Blackburn, one of the attorneys representing the businesses, described Metro's actions as "well-intentioned, illegal overreach."

"We agree that everybody needs to be responsible," Blackburn said. "These companies are acting in a responsible manner. The Metro Health Department is trying to do something without any authority to do it, and without any notice and opportunity to be heard, and we're asking the judge to say, 'No, you can't do that.'"

"Transpotainment" vehicles have become a Lower Broadway tourism staple in recent years, and can include converted trucks, wagons, buses and pedal taverns. The mobile businesses were initially barred from allowing alcohol on board but allowed to continue operating during Nashville's modified phase two restrictions meant to slow the spread of COVID-19.

Snapshots of maskless tourists holding plastic cups on the vehicles in late July led officials to institute tighter restrictions.

A public health order issued by the Metro health department on July 30 banned all "transpotainment vehicles" from operating, regardless of size and whether or not alcohol is on board.

Metro police cited Honky Tonk Party Express and Sprocket Rocket on Aug. 1 for continuing to operate against health department orders.

The business owners state in the lawsuit that these orders and their penalties have caused "irreparable injury" to their businesses, and ask the court to declare that the health department has no authority to regulate them. They also seek unspecified monetary damages.

A Nashville judge denied a similar request for a temporary restraining order last month by several Honky-tonk bar owners after bars citywide were ordered to shut down in an attempt to curb the spread of the virus. 

Lawsuit: Orders are selective, unconstitutional

The lawsuit argues that the Metro Public Health Department has no authority to regulate "transpotainment businesses." Only Sprocket Rocket is required to register for a certificate of public convenience.

Sprocket Rocket is licensed by the Metro Transportation Licensing Commission, but no provision specifically grants MPHD authority to regulate it or similar businesses, the lawsuit states.

Chris Song, spokesman for the Nashville mayor's office, stated in an email to The Tennessean that the Chief Medical Director has authority over "transpotainment" businesses through state law and Gov. Bill Lee's executive orders.

The business owners claim that their vehicles, including those belonging to Sprocket Rocket, fall outside of a law that permits the county health officer to close any "public establishments, facilities or buildings" to protect public health.

For Metro to force these businesses to close, officials would need to file a lawsuit in Davidson County Chancery Court claiming that the businesses were maintaining a nuisance, Blackburn said.

"The issue is not whether any of these entities are being irresponsible," he added. "This didn't begin with any alleged instance of infection in any of these businesses.

The health department is also required by state law to provide notice to a business not in compliance with public health regulations and allow an opportunity for a hearing before issuing any punitive orders. This did not happen before the "transpotainment" businesses were cited or forced to close, the lawsuit states.

The businesses also argue that they complied with other Metro COVID-19 protocol, including offering free face masks to passengers, limiting customer capacities and discontinuing mixed parties. The lawsuit claims that the open-air nature of their vehicles is safer than closed tour vehicles, which have been allowed to continue operating.

"Metro's allowance of some bus tours under the guise of public welfare is wholly arbitrary and protects a discrete interest group of commercial bus tour providers while banning ('transpotainment' businesses) from substantially the same activity," the lawsuit states.

Song did not respond to a question Thursday concerning Metro's reasoning for allowing other tour buses to remain open.

The "transpotainment" companies claim that this "selective" enforcement is discriminatory and unconstitutional, violating their Fourteenth Amendment right to be free from the "deprivation of liberty or property," which they say includes the right to operate their businesses.

The case is set for a temporary injunction hearing on Thursday, Aug. 13 at 10 a.m., though this is subject to change, Blackburn said.

Yihyun Jeong and Joel Ebert contributed to this report.

Reach Cassandra Stephenson at ckstephenson@tennessean.com or at (731) 694-7261. Follow Cassandra on Twitter at @CStephenson731.