photo by: Journal-World File Photo

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

An attorney quizzed local public health experts during a hearing Friday about studies and data they’ve cited to support a Douglas County health order that restricts the hours that bars can be open and serve alcohol.

Meanwhile, the attorney for the county posed the question of whether just because something is illegal — such as bartenders serving intoxicated patrons, or people drinking “to-go” drinks immediately — means it’s not going to happen, or if through a practical lens, people would break some laws.

Douglas County District Court Judge Kay Huff did not yet make a ruling in the case, but she heard animated examination of witnesses during the two-hour hearing.

Robert “Tuck” Duncan is representing Zach Snyder in his capacity as the owner of Paradise Saloon, an adult entertainment club in Lawrence that operates with a private club license. Duncan argued against a health order enacted to combat the spread of the coronavirus that requires bars and restaurants with liquor licenses to stop serving at 11 p.m. and close to customers by midnight, particularly the mandated cutoff of “to-go” service past 11 p.m.

Duncan asked Dr. Thomas Marcellino, Douglas County Public Health Officer, what data he had to back the part of his order that says bars and restaurants that have liquor licenses must cease all curbside or take-out service — of food and alcohol — at 11 p.m., while those establishments that don’t have such a license can operate 24/7.

Marcellino said his concern was that businesses were using such curbside services to work around the county’s COVID-19 mitigation strategy that calls for alcohol sales to end at 11 p.m. Duncan questioned him further about the difference between someone walking into a grocery store or convenience store to buy a 12-pack of beer versus someone buying a curbside cocktail to go, putting it in the trunk of their car and driving away. Marcellino said based on what he’s seen with bars and restaurants, there is a greater risk with curbside sales.

Brad Finkeldei, of the law firm Stevens & Brand, represented the county during the hearing and in a legal brief in response to the lawsuit, filed Thursday. Finkeldei is also vice mayor of Lawrence.

Marcellino testified under cross-examination by Finkeldei that when setting out guidelines to try to minimize the risk of spread of COVID-19, he knew things would occur that were out of the county’s control. He said he thought it was very difficult to enforce alcohol being picked up curbside, and “there is a tendency for it to be immediately consumed.”

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Snyder testified that roughly 50% to 60% of his business comes in between 10 p.m. and 2 a.m. Snyder also said that if the club was forced to close at midnight, he doesn’t think he’d be able to cover his overhead and might have to close permanently within a month and a half to two months. That would leave 15-20 people without a job, he said.

As a private club, Paradise Saloon’s members have to pay an annual fee, and the club keeps records of who those people are, Snyder said. Each time someone comes in, Snyder said they’re asked the same list of COVID-19 screening questions that he was asked when he recently went to renew his driver’s license, for instance.

However, on cross-examination by Finkeldei, Snyder said that people can get in the night they show up if the club decides to issue membership. Snyder also said that Paradise Saloon has not been following the hours restriction in the health order.

Finkeldei also questioned Marcellino and Dan Partridge, the director of Lawrence-Douglas County Public Health, about the current health order and others they’ve issued since the coronavirus pandemic reached Kansas in March. Both said they’ve been constantly evaluating the data over the past several months and trying to determine the best course of action based on that data.

In an affidavit along with the county’s legal brief responding to the lawsuit, Marcellino wrote that primarily young adults in bars late in the evenings are there to socialize. Alcohol lowers inhibitions, and intoxicated patrons tend to remove their masks to drink, and talk louder over music — therefore increasing potential for infected respiratory droplets to spread.

Despite that, under state law, bars are not supposed to serve intoxicated customers, as Duncan pointed out, Marcellino testified in response to questions from Finkeldei that at “any bar in this county,” you could find somebody being served who is intoxicated. Marcellino also said that in his experience he has also seen minors drink in bars, even though it’s against the law and bar owners can get in trouble for it.

Duncan asked Partridge whether because Snyder is following measures to mitigate potential spread of COVID-19, the underlying justification for the health order had failed. In response, Partridge — pointing out that Duncan’s nose was out of his mask at that point — said that nothing is done with perfection, and measures to mitigate the spread can fail.

Duncan also asked Partridge about data on outbreaks included in an affidavit he’d written in the case. It showed that about 22% of outbreaks in Douglas County, defined as two or more people from different households contracting COVID-19 from the same source, were connected to bars or restaurants — meaning that 78% of the outbreaks were not.

On cross-examination, asked whether any other single category of business had been connected to 22% of outbreaks, Partridge told Finkeldei that the county has also seen high rates of outbreaks in long-term care facilities, but he did not provide an exact number.

The next hearing date in the case was not yet set Friday. Duncan will file a brief in response to the county’s answer by the end of the day Wednesday, and the case will proceed from there, possibly with a follow-up response from the county.

In a second pending case in U.S. District Court for the District of Kansas, the owner of the Sandbar wants the health order declared unconstitutional. There are no hearing dates scheduled in that case yet, but the health officer’s answer to the complaint is due Nov. 4, online court records indicated Friday afternoon.

Related coverage

• 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