photo by: Journal-World File Photo

The Douglas County Judicial and Law Enforcement Center is pictured in this file photo from Aug. 4, 2020.

In an ongoing legal dispute over a Douglas County health order that limits bars’ operating hours amid the coronavirus pandemic, an attorney now says a U.S. Supreme Court decision striking down attendance limits at religious services should apply to an adult entertainment club in Lawrence.

Attorneys for the county, however, say that argument fails to note that free religious exercise protections of the First Amendment were central to the court’s decision in the Roman Catholic Diocese of Brooklyn, N.Y., case against New York Gov. Andrew Cuomo.

On Nov. 25, the justices, in a 5-4 split, barred New York from enforcing certain limits on attendance at churches and synagogues in areas designated as hard hit by the virus, the Associated Press reported.

Robert “Tuck” Duncan is representing Paradise Saloon in a Douglas County District Court case challenging the health order that, in part, limits the hours in which establishments with liquor licenses can operate.

In a recent supplemental brief, Duncan cited the Supreme Court opinion in the New York case, which stated that “the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.”

“In our case just substitute ‘places that serve alcohol’, and the same principle applies,” Duncan wrote.

Duncan also quoted Justice Neil Gorsuch’s concurring opinion, which stated that “the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” Duncan wrote that the health order similarly applies to the club, despite precautions that owner Zach Snyder said he has taken.

In response, Brad Finkeldei, of Stevens & Brand LLP, wrote that Duncan was mischaracterizing the Supreme Court’s ruling and its applicability.

“It should go without saying that the analysis of a non-neutral threat to religious practice requiring strict scrutiny under the First Amendment has no applicability to the present case,” Finkeldei wrote. “The Paradise Saloon is not a place of worship, and there is not even a challenge brought under the First Amendment in this case, let alone under a theory of Free Exercise of Religion.”

Finkeldei, who is also mayor of Lawrence, wrote that Judge Kay Huff should instead consider a federal judge’s recent decision in a similar lawsuit filed by Peach Madl, owner of The Sandbar in downtown Lawrence.

As the Journal-World reported, that judge declined to grant an injunction that would have prevented the county from enforcing the health order. The decision focused on the legal grounds that a liquor license is a privilege and not a right, rather than the public health issues.

Complicating matters further is the fluidity of the pandemic. Douglas County Health Officer Dr. Thomas Marcellino has modified the health order as local COVID-19 cases have risen and fallen.

The most recent rendition of the health order, issued Nov. 20, does not differentiate between establishments that do or do not have liquor licenses. Previous versions of the order — one of which prompted Paradise Saloon’s case — did not allow establishments with liquor licenses to serve food or drink after a cutoff time, though establishments without liquor licenses could continue serving food with no hour restrictions.

The cutoff time has also fluctuated between 9 p.m. and 11 p.m. in different versions of the health order. Currently, it’s 10 p.m. for all alcohol sales and in-person dining, though curbside and delivery food service is allowed after that time. Snyder testified in October that roughly 50% to 60% of his business comes in between 10 p.m. and 2 a.m.

Paradise Saloon’s case has been submitted to Huff, but she has not yet made a ruling.

Related coverage

• Nov. 20, 2020: All Douglas County restaurants, bars must close at 10 p.m.; mass gatherings limited to 10 people

• Nov. 19, 2020: Federal judge denies Sandbar’s request for injunction against health order limiting bars’ hours

• Nov. 12, 2020: As COVID-19 cases spike, Douglas County reduces mass gathering limit from 45 to 15

• Nov. 12, 2020: Judge weighs injunction in Sandbar case against Douglas County health order that restricts bars’ hours

• Oct. 28, 2020: Attorneys submit final arguments to judge, await ruling on Douglas County health order limiting bars’ hours

• Oct. 16, 2020: Attorneys argue in Paradise Saloon case challenging Douglas County health order; ruling still to come

• Oct. 15, 2020: Douglas County stands behind health order that’s facing legal challenges

• Oct. 12, 2020: Longtime downtown Lawrence bar owner wants Douglas County health order ruled unenforceable, lawsuit states

• Oct. 6, 2020: Lawrence club owner files legal action challenging Douglas County health order limiting hours

• Oct. 1, 2020: Restaurants, bars may now serve alcohol until 11 and close at midnight, per health order change

• Sept. 3, 2020: New public health order requires establishments to stop serving alcohol at 9 p.m.

• Aug. 21, 2020: Are bars open legally in Douglas County? Health department is still determining the specifics

• April 23, 2020: Lawrence-Douglas County health officials have dealt with dozens of businesses out of compliance with governor’s orders

• April 6, 2020: Stay-at-home order leaves a big question unanswered: Says who?

• March 18, 2020: Kansas Supreme Court: State courts to conduct emergency operations only; cases won’t be dismissed