Douglas County stands behind health order that’s facing legal challenges

photo by: Mackenzie Clark

The Douglas County Judicial and Law Enforcement Center, 111 E. 11th St., is pictured on Wednesday, April 8, 2020.

Douglas County issued a statement Thursday in support of an embattled health order that, among other things, limits the hours that bars can be open amid the ongoing coronavirus pandemic.

In addition, attorneys John Bullock and Bradley Finkeldei, of the law firm Stevens & Brand, filed a legal brief on the county’s behalf in response to one of two lawsuits that question the health order. The order mandates that any restaurants and bars that hold liquor licenses must stop serving at 11 p.m. and close at midnight; however, establishments that do not hold liquor licenses face no hour restrictions.

The county has responded to a lawsuit filed earlier this month by the owner of Paradise Saloon asking in part that the private club be allowed to choose which hours to be open, if its hours must be restricted. In addition, the county’s response includes affidavits by Dr. Thomas Marcellino, the Douglas County Public Health Officer, and Dan Partridge, director of Lawrence-Douglas County Public Health.

Marcellino’s affidavit states that there is a “disproportionately high risk of transmission of COVID-19 in establishments with liquor licenses operating after midnight.”

It says the atmosphere in bars and restaurants that serve as bars at night, “especially late at night, is conducive” to the spread of COVID-19 because of bar patrons removing masks to consume alcohol, speaking loudly to be heard over loud music,

“In addition, intoxicated persons are likely to experience impaired judgment and loosened inhibitions and thus wear masks less consistently,” Marcellino wrote, also noting that bar patrons after midnight are more likely to be younger adults who are also more likely to be asymptomatic carriers.

In his affidavit, Partridge wrote that of the county’s 63 outbreaks as of Oct. 13 — “defined as two or more cases with the same source of transmission and are not within the same household” — 14 of them, or 22.2%, involved bars or restaurants.

“In addition to official outbreaks, this community has had 9 additional situations where a restaurant or bar had more than one case connected to it,” Partridge wrote. “Overall, we have had 32 reported exposures at bars and restaurants.”

Both lawsuits also question why establishments with liquor licenses cannot continue takeout, curbside or “to-go” service after 11 p.m., but establishments that don’t have liquor licenses have no hour restrictions for such services.

Marcellino wrote in his affidavit that the concern with carry-out alcohol is that “bars and restaurants were using that process to work around the community mitigation strategies and it encouraged groups to continue to gather in a manner contrary to safety protocols.”

“That is, if alcohol sales are to cease at 11:00 p.m., but a bar could continue to sell carry-out alcohol, the bar could legally circumvent the order to cease the sale of alcohol. So this measure brings consistency to the health order mandates,” Marcellino wrote.

The county’s statement concludes that the “modest limitation” on hours of operation is warranted and will help reduce Douglas County residents’ risk of illness or death from COVID-19.

Finkeldei is also vice mayor of Lawrence. The Lawrence City Commission on a vote of 4-1 approved in September an ordinance that makes endangering the public health, safety, or welfare against municipal code. The ordinance uses existing state public nuisance law to give Lawrence police the authority to issue up to a $500 ticket to those who violate health orders. Mayor Jennifer Ananda voted against the measure.

As of Thursday afternoon, online court records indicated that no hearing dates had yet been set in the second lawsuit, filed late last week by the owner of The Sandbar in downtown Lawrence in partnership with the Kansas Policy Institute.

A hearing in the Paradise Saloon case is set for 1:30 p.m. Friday, and Douglas County District Court proceedings are being broadcast via YouTube.

Contact Mackenzie Clark

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Related coverage

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

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