Some of the biggest names in Wichita bar scene press lawsuit challenging COVID-19 rules
A lawsuit in federal court challenging Sedgwick County’s rules to slow the spreading of COVID-19 lists some of the biggest names in Wichita’s bar and nightlife scene, suing most of the city and county’s top elected and appointed officials.
If it succeeds, the suit will essentially take Sedgwick County back to business as it was pre-pandemic, negating county health orders mandating the use of protective face masks in public places, an 11 p.m. to 5 a.m. curfew on bars and restaurants, and any limitations on the size of public gatherings.
The suit is partially crowd-funded by “Unmask the Truths,” a Facebook and web-based group of mask opponents raising money to pay lawyer David Miller to challenge the county and city mandates on constitutional grounds.
“A face mask has become a symbol of an attempt by the government to gain control of its citizenry,” the lawsuit claims. “Forcing them to wear face masks is forcing them to convey a message with which they disagree. Because a mask has become a political symbol during this current and highly politicized pandemic, the wearing of a mask is a form of symbolic speech.”
Miller said he’s in the process of preparing a request for a preliminary injunction that would freeze enforcement of the county’s rules while the constitutionality is argued in court. He said he expects to file that motion within the week.
The list of plaintiffs is long and contains many of Wichita’s best-known bars and clubs: Industry Old Town, Augustino Brewing Company, Revolution Lounge, 54 West Music Hall, Blu Nightclub, The Rusty Nail, Vorshay’s Cocktail Lounge, The Cowboy Inn, The Stop, and the Party Express bus-charter service, which transports people to and from Old Town bars and other night spots.
The bars’ owners and two individual plaintiffs, Nick Sutter and Josiah McCoy, allege their rights as American citizens are violated by the county rules.
Since county Health Officer Dr. Garold Minns’ order went into effect Nov. 13, revenue at the Revolution Lounge are down more than 90 percent from normal, said an affidavit by owner Kyle Okumura.
“Business operations have currently seized (ceased) as of November 13, 2020 and thus all current employees have been temporarily laid off,” the affidavit said.
A similar affidavit by Industry owner Bradley Steven told the same kind of story.
“Our concept is designed for bar service and with the government restrictions we have had to close down twice,” he wrote. “We have also been hindered with both the 10 pm and 11 pm curfews. Sales are at an all time low.”
Augustine Joseph Iacopclli, the owner of Augustino Brewing, testified his business has been hurt even though it closes by 11 p.m. anyway.
“While our establishment is not open past 11 p.m., the very calling out of bars and restaurants as spreader locations of COVID-19, without documented evidence or proof in Sedgwick County, has had the effect of scaring off some of our customers who would otherwise be frequenting our establishment,” he testified.
The list of defendants is also lengthy, consisting of elected officials who have voted in favor of local health orders and hired staff department heads who have authority to enforce parts or all of the order. It includes:
County Commissioners Pete Meitzner, Lacey Cruse and David Dennis along with former commissioner Michael O’Donnell; Wichita Mayor Brandon Whipple and council members Brandon Johnson, Becky Tuttle and Cindy Claycomb.
Also, County Manager Tom Stolz, county Health Officer Dr. Garold Minns (misspelled “Mims” in the lawsuit); county Health Department Director Adrienne Byrne (identified as “animal control director” in the suit); county Sheriff Jeff Easter, Wichita Police Chief Gordon Ramsay, county Courthouse Police Chief Darrell Haynes, county Park Superintendent Mark Sroufe, county Fire Chief Douglas Williams, and Chris Labrum and Scott Wadle, who run the merged city/county building and planning departments.
All the named staff members have some authority over the enforcement of city and county codes and their employees could be pressed into service to deliver summonses against businesses that don’t comply with the health orders. The latest version includes the possibility of $500 fines.
The plaintiffs are asking the judge to declare the mandates unconstitutional and block criminal enforcement of the health order. They are not seeking monetary relief.
The suit started out in state court but was removed to federal court last week by lawyers for the county. Federal Judge Holly Teeter, an appointee of President Donald Trump, has been assigned to the case.
Meitzner, the chairman of the County Commission, said he won’t comment on it because it’s pending litigation.
Whipple, Wichita’s mayor, said he understands the frustration.
“They are worried about their families and their employees, so I get it,” he said. “But the other thing too is we’ve got to be thinking mid- and long-term where stopping and slowing down the spread of COVID is vital to getting our economy back to normal again.
“My job right now is to focus on stopping the spread of COVID so we save folks’ lives and ensure the hospitals aren’t anymore overwhelmed than they are,” he said.
By doing that, coupled with distribution of vaccines starting within days, “We can get back to normal as soon as possible, which is going to help those who filed this lawsuit.”
Mass gathering and curfew claims
In the lawsuit’s arguments against the mass gathering limit of 25 people, the plaintiffs presume that political protests are subject to the restrictions.
The bars and Unmask the Truth Organization appear to claim that going to a bar is a political protest against health orders and therefore protected by the Constitution.
The plaintiffs said they planned a pub crawl in protest of the health order for Dec. 5. The “public political rally” to protest the order would be illegal under the order, according to the lawsuit. It argues that the mass gathering “prohibition” violates constitutional protections on peaceful assemblies.
A Facebook event hosted by Unmask the Truth Organization said the Dec. 5 protest against the local health mandates would be a bar hop to several of the businesses listed in the lawsuit. The event had seven attendees, according to Facebook statistics.
The bars allege that the 11 p.m. curfew on in-person drinking and dining violates their right to due process.
The lawsuit cites a court ruling in Pennsylvania that the governor’s closure of non-life-sustaining businesses to be a violation of due process. That case dealt with the complete closure of businesses, not occupancy limits and curfews.
But “the significant economic hardship caused by the Mims (sic) Order has made complete closure of several of the Plaintiffs’ bars/restaurants a likely reality,” the lawsuit claims.
Sedgwick County’s order, which sets the occupancy limit at 50%, is not as restrictive as the 25% recommended by the White House coronavirus task force. The businesses will “fully open for business” if the health order is declared unconstitutional, their attorney wrote.
Mask rules violate rights, suit says
The lawsuit claims the mask mandate violates rights to privacy, to free speech, to make medical decisions and due process.
A mask mandate equates to the government requiring medical treatment without consent, the plaintiffs allege. They cite May guidance from the FDA that masks are considered medical devices — for purposes of FDA regulation — when they are intended to prevent transmission of an infectious disease, including COVID-19.
“Thus, the mask mandate of the Mims (sic) Order mandates the medical treatment of every citizen of Sedgwick County, with some exemptions, even though the vast majority of individuals required to wear masks are health or are not in a group with a high risk to contract COVID-19,” the lawsuit alleges.
“The mask mandate presumes that all citizens are diseased unless proven healthy, and is forcing every citizen of Sedgwick County … to submit to government ordered medical treatment without the citizen’s consent.”
Arguing that wearing masks is political, the lawsuit alleges that the mandate compels people to convey a message they disagree with, under threat of criminal prosecution. It further reasons that the health order is a form of government-mandated speech, which people have a right to protest.
The lawsuit claims “the legitimate medical and scientific evidence” shows that masks “do nothing to stop the spread of COVID-19.”
The lawsuit cites numerous studies and claims, including a blog from Dr. Jim Meehan of Oklahoma that says wearing masks lead to “negative and dangerous consequences,” including less oxygen and more carbon dioxide in the blood.
The Mayo Clinic in July debunked that myth: “There is no risk of hypoxia, which is lower oxygen levels, in healthy adults. Carbon dioxide will freely diffuse through your mask as you breathe.”
A Connecticut judge in September rejected Meehan’s testimony in a coronavirus-related lawsuit, ruling that he was unqualified to be an expert witness on an infectious disease. Meehan is an eye doctor.
This story was originally published December 8, 2020 at 5:01 AM with the headline "Some of the biggest names in Wichita bar scene press lawsuit challenging COVID-19 rules."
