By: MACKENZIE CLARK – Public safety reporter
The owner of a downtown Lawrence bar is asking a federal judge to rule that a Douglas County health order limiting business hours is unconstitutional and unenforceable.
The lawsuit also seeks due process, such as a hearing before a neutral party, to determine whether the bar is safe to operate amid the ongoing coronavirus pandemic. No such process exists under the health order — so, the complaint states, the lawsuit seeking nonmonetary relief is the owner’s only option.
Peach Madl, who opened The Sandbar at 17 E. Eighth St. in 1989, said in a news release Monday that the bar has taken many measures to prepare a space that is safe.
“We all want the same thing, healthy and happy customers, but if we aren’t permitted to have normal hours soon, we might not ever get the chance to be a part of team Lawrence again,” Madl said in the release from the Kansas Policy Institute.
Douglas County establishments that have liquor licenses must stop serving alcohol and food at 11 p.m. and close by midnight under the current health order. However, restaurants that do not have liquor licenses are allowed to remain open, according to the order.
The complaint, filed Friday in U.S. District Court for the District of Kansas, states that the health order does not explain why a bar with outdoor seating must stop transactions after 11 p.m., but an indoor restaurant is permitted to stay open past midnight. According to guidance from the Centers for Disease Control and Prevention, indoor activities are more risky for spread of COVID-19 because it might be harder to keep people distanced from each other and there is less ventilation.
The complaint also included photos of the bar with COVID-19 mitigation measures in place. Visible in the images are indoor seating with partitions in between tables and a canopy over a large outdoor seating area.
“There is no constitutionally sufficient rationale for imposing the restaurant and bar curfew regime,” Samuel MacRoberts, litigation director for the Kansas Justice Institute, wrote in the complaint.
The complaint argues that if the health order is not unconstitutional, then the state statutes that enable it are: under the Kansas Constitution, power to legislate is vested in the state House and Senate, and that power can’t be delegated to an “unelected and politically unaccountable” body, it states.
But Dr. Thomas Marcellino, the Lawrence-Douglas County health officer who has signed off on the health order in question and others amid the pandemic, has “unilaterally created his own bar and restaurant regulatory regime that radically departs from state, administrative, and local law,” MacRoberts wrote in the complaint.
“Either the authority constitutes an unlawful delegation of power, or Defendant exceeded his authority,” the complaint states, referring to the health officer. The position is appointed by the Lawrence-Douglas County Health Board.
MacRoberts said in the news release that business owners should be afforded a due process hearing when an unelected health officer issues an order impacting their business.
“It’s a matter of fairness,” he said. “There’s no mechanism to challenge the restaurant and bar curfew order, and that should change.”
As the Journal-World reported last week, the owner of Paradise Saloon, a private adult entertainment club in Lawrence, has filed a case in Douglas County District Court seeking an injunction to allow it to operate outside of the health order’s hour restrictions. That case is set for a hearing at 1:30 p.m. Friday.
Both cases also challenge the health order’s restriction that disallows establishments that hold liquor licenses from providing any curbside or “to-go” service after 11 p.m., though restaurants without such licenses can continue serving.
Normally under state law, licensed Kansas establishments can serve alcoholic beverages anytime from 6 a.m. to 2 a.m.
As of Monday afternoon, no hearing dates had been set in the Sandbar case. According to online court records, the case has been assigned to District Judge Sam A. Crow and Magistrate Judge Angel D. Mitchell in Topeka.
Karrey Britt, a spokesperson for Douglas County, said the county has no comment on either pending case.
The Kansas Policy Institute is a Wichita-based nonprofit that seeks to protect and promote Kansans’ constitutional freedoms, according to its website, and the KJI is its litigation arm, according to the news release.