photo by: Nick Krug/Journal-World File Photo

This Journal-World File Photo from 2012 shows The Sandbar, 17 E. Eighth St.

The owner of a downtown Lawrence bar is asking a federal judge to immediately stop, pending the duration of a lawsuit, Douglas County from enforcing a health order that requires bars to stop serving at 11 p.m.

Peach Madl, longtime owner of the Sandbar, 17 E. Eighth St., filed a lawsuit in federal court last month against Lawrence-Douglas County Health Officer Dr. Thomas Marcellino for an order he issued amid the ongoing coronavirus pandemic. The order requires establishments that have liquor licenses to stop serving all food and drink at 11 p.m. and to close at midnight.

Kansas state law allows liquor license holders to serve until 2 a.m., but Marcellino has said that the atmosphere of establishments that serve alcohol was more likely to lead to health risks such as people talking loudly over music, standing close to one another and neglecting to keep masks on.

Madl has asked the court to issue a preliminary injunction to cease enforcement of the order while the case is pending. Her motion did not ask the court to make any rulings about the potential health issues that the county has cited in support of the hour restriction — “Those questions will be raised and answered later,” her attorney, Samuel MacRoberts, wrote.

Instead, the request is for the court to immediately put enforcement on hold because the order does not allow for due process, meaning that, as it stands, the health order does not offer a business any way to seek a hearing to determine whether it is safe to operate after midnight. MacRoberts wrote that the lack of such process prevented a check on the government’s power.

The county, in response, argued that Madl and the Sandbar do not have a constitutionally protected right to a liquor license. The response also said the assertion that the bar has a protected right to earn profits or do business is not supported by legal precedent.

“Indeed, courts all over the country have rejected this argument in connection with COVID-related bar closure orders,” attorney Brad Finkeldei wrote in the county’s response.

He also wrote that the plaintiff has not shown that the current health order could cause irreparable harm, which is one factor the court must weigh when considering a preliminary injunction.

Finkeldei, who is also vice mayor of Lawrence, wrote that the harm to the county and its residents, “in terms of sickness, death, dollars, and long term implications, far outweighs any monetary harm Plaintiffs may suffer as a result of the Public Health Order’s limitations.”

U.S. District Judge Eric F. Melgren heard the motions on Tuesday, according to court records.

Ellen Hathaway, a spokesperson for the Kansas Policy Institute, told the Journal-World via email Thursday that at the end of Tuesday’s hearing, Melgren said the ruling would be issued “promptly” but did not give a date or a timeline. Madl partnered with the Kansas Justice Institute, the litigation arm of the Kansas Policy Institute, to file the lawsuit.

A similar case, filed by the owner of Paradise Saloon, in Douglas County District Court, was still under consideration as of Thursday, online court records indicated.

Related coverage

• 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