photo by: Journal-World File Photo

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

Following two hours of testimony on Oct. 16, attorneys for Douglas County and an adult entertainment club in Lawrence have submitted their final written arguments for the judge to consider, both raising new points.

The owner of Paradise Saloon filed a lawsuit last month in Douglas County District Court challenging the county’s health order that is currently in effect. The order requires establishments that hold liquor licenses to stop serving food and drink at 11 p.m. and close their doors by midnight; restaurants that do not hold liquor licenses face no such hour restrictions.

State law allows licensed establishments to serve alcohol anytime from 6 a.m. to 2 a.m., and the Legislature approved “to-go” cocktail service to give businesses a way to serve alcohol during the coronavirus pandemic. The case seeks a temporary restraining order for the club against the health order.

Robert E. “Tuck” Duncan filed a reply on behalf of Paradise Saloon that cites a case from earlier in the pandemic: First Baptist Church et al v. Gov. Laura Kelly. In that case, U.S. District Judge John W. Broomes granted a preliminary injunction in April so that the congregations in the lawsuit could freely exercise their religion.

“The issue in that case was ‘mass gatherings’ and the violation of First Amendment right to the free exercise of religion,” Duncan wrote. “In that case the Governor’s Order prohibitions were expressly applied to mass gatherings at auditoriums, theaters, stadiums, and a number of other venues. In the instant case the Health Department Order is aimed at mass gatherings during certain hours at places that sell beverage alcohol.”

Brad Finkeldei, attorney for the county, responded that “the order at issue related to an order which was specifically directed at religious institutions” but it “obviously has no application to this case.”

The executive order in question did name religious gatherings among other venues and events where attendance was strictly limited.

In his final response, Duncan again noted that the health order bans businesses from offering curbside service after 11 p.m., despite that people could walk into a convenience store and buy alcohol there.

“Why? Because the Health Officer in a most condescending manner suggests that Douglas Countians will use this service (enacted to assist the financial viability of Kansas businesses during these difficult times) in an unlawful manner,” Duncan wrote.

As the Journal-World reported previously, Dr. Thomas Marcellino, the local health officer who wrote the health order, testified that 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.

Finkeldei, in response, wrote that the argument that a health order should not be able to prevent the otherwise lawful activity of selling cocktails to go is not persuasive, because “the restrictions in all health orders, in Douglas County and across the country, are instituted to limit the public from partaking in otherwise lawful activities.”

“Indeed, it is of particular note that Plaintiff does not provide any evidence or testimony that people are not abusing the cocktail-to go law, Plaintiff simply argues that if someone does it, they violate the law,” Finkeldei wrote. “Such an argument should not be persuasive support of issuing a restraining order that could lead to an increased spread of COVID in our community.”

In conclusion, Finkeldei wrote that permitting Paradise Saloon to use injunctive relief to undermine the health and safety of the entire community should not be allowed. In addition, the county asks that if the judge does grant an injunction, that it apply only to Paradise Saloon.

However, he wrote that the health orders have been modified throughout the COVID-19 pandemic, and “future amendments are also likely which would negate any claim of irreparable injury.”

It was not clear as of Wednesday when the judge might make a ruling, nor whether it will be in writing or at a future court hearing that has not yet been set.

Sandbar case

Peach Madl, owner of The Sandbar in downtown Lawrence, has filed a similar lawsuit in federal court against Marcellino in his capacity as health officer. That case seeks a court ruling that due process applies, and that owners of establishments affected by the health order should be able to have a hearing to argue why their businesses should be allowed to stay open until 2 a.m.

As it stands currently, and as county health experts testified in the Paradise Saloon case, the only recourse is to file a lawsuit.

Attorney Samuel MacRoberts recently filed a motion seeking a preliminary injunction in that case. Finkeldei has entered an appearance on behalf of the county in that case, as well, and the county’s answer is due Nov. 12.

Related coverage

• 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