Cease And Desist Order To Be Sent Stopping Fort Smith Concert

May 12, 2020

TempleLive in Fort Smith is the subject of a dispute about a planned concert on May 15.
Credit Department of Parks, Heritage & Tourism

A cease and desist order is being sent to TempleLive in Fort Smith to stop a May 15 concert planned at the venue, Gov. Asa Hutchinson said Tuesday. The event is scheduled ahead of the allowed date of May 18 for the limited opening of indoor venues, and the governor said a business can’t “arbitrarily determine” a reopening.

Lance Beaty, owner of Beaty Capital Group which owns and manages TempleLive, told Talk Business & Politics he is disappointed in the decision.

“I’m disappointed that we’ve seen the discussion transition from a science and health discussion to a politics and power issue,” he said.

TempleLive, operating in the former Masonic Temple in downtown Fort Smith, announced April 23 that singer-guitarist Travis McCready, formerly with the Southern rock band Bishop Gunn, will perform an acoustic set at 8 p.m. on May 15. The concert has gained national attention with publications addressing the conflict between TempleLive and state health officials including Rolling Stone, The New York Times and Bloomberg.

During his daily COVID-19 briefing, Gov. Hutchinson said the event is three days ahead of the allowed opening and said a “specific plan” addressing health and other safety concerns was required.

“None of that was done in this case. It is out of time,” the governor said, adding that allowing the concert to go forward sends a message to other businesses that following the rules is a choice.

“You can’t just arbitrarily determine when the restrictions are lifted. That is something that is done based upon public health requirements. In terms of the concert, there will be a cease and desist order that will be issued by the Department of Health directing that that concert not take place,” Gov. Hutchinson said.

A May 11 e-mail from John Scott, an attorney with Connor & Winters who represents TempleLive, to Terry Paul with the Arkansas Department of Health, indicates that TempleLive was working with the ADH on health and safety protocols. Safety protocols outlined by TempleLive include an 80% reduction in seating, from 1,100 to just 229 seats, pre- and post-show disinfection, entry temperature screening, continuous antiseptic wipe down of high touch surfaces, distance seating requirements (which separates groups of guests by six feet or more) and establishing one-way walking paths as recommended by U.S. Centers for Disease Control and Prevention.

The ADH asked TempleLive to mandate that all patrons and staff wear masks, instead of just making them available. Scott’s note said TempleLive would follow the mandate.

The only other pushback from the ADH was the date.

“We believe the 3-day bridge between the event and revised date should be considered as mitigating in favor of the event, given other factors. This event was scheduled innocently and optimistically based on existing information at the time it was scheduled. Given the investment in safety procedures, scheduling the artist, selling tickets to patrons who now have plans, and other economic factors, we believe that postponing would impose an unnecessary financial burden on TL and all who are invested in the event, notwithstanding other issues. Through these recent discussions, TL has remained optimistic approval would come, and TL remains committed to conducting a safe event,” Scott said.

Scott also noted in the e-mail that other indoor venues not following the safety rules to be in place at TempleLive have already been allowed to open.

“Finally, we must respectfully observe that religious services and houses of worship are currently allowed to hold events with more people, at a higher percentage of capacity, and with fewer mandatory safety precautions.”

Scott also said the ownership and management of TempleLive simply seek an exception and are not attempting to minimize the need for public health.

“Last, I emphasize TL’s intent has not been to flout or disrespect the Governor, ADH, or the public safety of Arkansas citizens. To the contrary, TL is attempting to shine light on an important aspect of art, performance, and enjoyment of those vital aspects of a civilized society. TL invites the Secretary’s resolution in a way that would allow the event to provide such illumination,” Scott noted in the Monday e-mail exchange with Paul.

In an interview later Tuesday, Dr. Nate Smith, Secretary of the Arkansas Department of Health, was asked by Talk Business & Politics Roby Brock about the argument made by TempleLive that asking for a three-day exemption should be considered.

“I would turn that around as well. The venue is available next week and so are the performers, so why push to have this done before it is legal? There is no good reason for that,” Smith responded.