Paradise Saloon asks judge to reconsider decision and stop Douglas County from enforcing health order, citing San Diego case
photo by: Journal-World File Photo
A local adult entertainment club has asked a judge to backtrack on her ruling that she would not stop Douglas County from enforcing a health order, and it’s now citing a recent San Diego court case.
Amid the ongoing coronavirus pandemic, the owner of Paradise Saloon in Lawrence filed a lawsuit that, in part, asked a judge to issue a temporary restraining order that would have prevented county health officials from enforcing restrictions at that establishment. As the Journal-World has reported, Judge Kay Huff recently denied that request, but the civil case continues in Douglas County District Court.
Though the health order has been modified as the local COVID-19 situation changes, it at times has included a restriction on the hours when establishments that have liquor licenses can operate and sell food, as opposed to restaurants that do not hold such licenses. The order currently in effect, issued Nov. 20, does not differentiate between the two, but it does mandate that all such businesses stop in-person service and all alcohol sales at 10 p.m., though curbside pickup and to-go orders that only include food may continue.
In his latest filing, Robert E. “Tuck” Duncan, attorney for Paradise Saloon, pointed to a Dec. 16 order in which a judge granted an injunction in a similar case involving an adult entertainment business in San Diego.
In that case, Judge Joel R. Wohlfeil, of the Superior Court of San Diego County, wrote in an order: “Defendants have presented no evidence that Plaintiffs providing live adult entertainment and San Diego County businesses with restaurant service, such as Plaintiffs’ establishments, who’ve implemented protocols as directed by the County, have impacted ICU bed capacity throughout the Southern California Region (much less in San Diego County).”
Duncan argues in his new motion, filed Dec. 17, that in Paradise Saloon’s case, “the government has not narrowly tailored the law to achieve the public health interest involved,” and that the judge should have found similarly to Wohlfeil’s ruling.
He also noted that the judge’s order did not address service of “cocktails to go,” which the Kansas Legislature has allowed during the pandemic. Douglas County’s health order does not allow sales of alcohol after 10 p.m., even though under state law, it would be allowed until 2 a.m.
“There was no factual evidence to support the unilateral denial of this statutory permission (affecting) all these licensees,” Duncan wrote, noting that people could still buy beer in a Douglas County convenience store after 10 p.m. but could not purchase a bottle of wine from a restaurant.
Brad Finkeldei, of the law firm Stevens & Brand LLP, wrote in a response filed on behalf of the county Dec. 23 that the facts of the California case are “clearly distinguishable” from this case.
In that case, San Diego County’s health order limited the operation of restaurants but completely closed adult entertainment venues that also served food, a distinction that could involve the First Amendment, Finkeldei wrote.
“However, in this case, Defendant’s health order treats all establishments with liquor licenses the same (and the subsequent order treats all restaurants, regardless of liquor license, the same),” Finkeldei wrote. “That is, there is not different treatment for establishments that have adult entertainment versus those without adult entertainment.”
Finkeldei’s response does not address the issue of cocktails to go.
Other arguments Duncan has raised since the case was filed in October include that Paradise Saloon is a private club, rather than a bar open to the general public; that the health order was an overreach by a nonelected official, Dr. Thomas Marcellino, Douglas County’s health officer; that the order did not provide due process to business owners; and that a United States Supreme Court opinion striking down attendance limits at religious services should apply to the local health order.
As of Monday, court records indicated that the case did not yet have any future hearings scheduled, though Huff wrote in her order denying the temporary injunction that the plaintiff could still request a hearing on the petition for a permanent injunction.
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