Wichita bars drop anti-mask claims, focus lawsuit on curfew in county order

A coalition of Wichita bars is no longer challenging Sedgwick County’s mask mandate and mass gathering limits, focusing a lawsuit in federal court on the county’s 11 p.m. bar and restaurant curfew.

But the lawyer handling the suit said he plans to soon file a separate federal lawsuit seeking to do away with the mask mandate.

An amended complaint filed Friday in U.S. District Court in Wichita was narrowed to the bar curfew only and also dropped all defendants except for Sedgwick County Health Officer Dr. Garold Minns.

“It’s the curfew restrictions in the order that we’re challenging,” David Miller, the group’s lawyer, said. Minns remains as the sole defendant on that because the health order was issued under his authority, he said.

“Minns has, among other things, and for all intents and purposes, created his own regulatory regime that departs from state law, and is now criminally enforceable,” the lawsuit alleges. “ Either the authority constitutes an unlawful delegation of power, or the Defendant has exceeded his authority.”

The bars say they will fully reopen for business while implementing COVID-19 mitigation measures if the court declares the curfew in Minns’ health order unconstitutional. Bars complained of as much as 92% drop in sales because most patrons do their heaviest drinking between 11 p.m. and 2 a.m.

The lawsuit alleges the order violates the right to due process, and state statutes are either unlawful or the local health orders exceed the power granted by law.

The lawsuit claims that bar curfews are not effective at slowing the spread of the coronavirus.

“Simply stated, there is no reasonable or rational connection between the 11 P.M. curfew imposed by the Defendant’s Order and the spread of COVID-19,” the lawsuit alleges. “If the goal of the December 8 Order is to slow the spread of COVID-19, then there is no rational or reasonable basis for the 11 p.m. curfew.”

The White House COVID-19 task force disagrees. Its Dec. 6 report to Kansas said: “Effective practices to decrease transmission in public spaces include limiting restaurant indoor capacity to <25% and closing bars/limiting hours.”

Wichita Mayor Brandon Whipple, one of the original defendants in the lawsuit, said he understands the bar owners’ frustration, but getting control of COVID comes first.

He noted the first COVID vaccinations took place Monday in Wichita, with health-care workers at Ascension Via Christi hospital getting the initial doses. While it will be some months before vaccines are widely available, it’s a signal of hope that the curfews will end, Whipple said.

“We need to look at this long-term, ensuring that after this upcoming year, the bars and restaurants, once we get COVID under control, that they have the best year they’ve ever had,” he said. “My goal is to get our community healthy, to get our economy healthy, and I think that the bar owners and the restaurants that filed this lawsuit will be a part of that.”

Miller remains committed to filing for a separate injunction against the mask mandate, but hasn’t made a decision whether to challenge mass-gathering restrictions as he did in the original filings.

“I haven’t decided completely yet, because the original order that I challenged was the one that became effective Nov. 27,” Miller said. “Now, since the order was amended on Dec. 8, it did allow for political protest . . .I’m looking into whether that addresses the challenge that I made in the original petition.”

In its original form, the lawsuit claimed the mass-gathering limits infringed on residents’ First Amendment rights to protest the government. The bars planned to protest the order by organizing a pub crawl.

The bar hopping protests are now organized every Saturday.

An update to the health order added an exemption for “bona fide” protests held outdoors on public property.

The first filing of the lawsuit alleged that mask mandates were unconstitutional, saying masks are a “political symbol” and “legitimate medical and scientific evidence” show masks “do nothing to stop the spread of COVID-19.”

The mask claims were dropped after at least two of the bars that are plaintiffs in the lawsuit publicly announced they are not opposed to the mask mandate.

“We wear masks at The rusty nail and require our customers to wear them,” co-owner Shauna Claycomb wrote in a Dec. 9 Facebook post by The Rusty Nail. “We abide by the social distancing rule by removing seating in our dining room and increasing seating out side. We just want our hours back.”

“We’re just fighting for our rights and our lively hood. I hope no one gets the wrong impression that we’re fighting the ban and rebelling agains mask or other safety measures.”

The list of plaintiffs also includes Industry Old Town, Augustino Brewing Company, Revolution Lounge, 54 West Music Hall, Blu Nightclub, 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 amended complaint dropped two individual plaintiffs — Nick Sutter and Josiah McCoy — who were challenging the mask mandate.

The lawsuit does not ask for monetary compensation. Rather, it asks Judge Holly Teeter to block enforcement of the bar curfew. The bars request a preliminary injunction.

In a separate federal lawsuit filed by another Kansas bar, a judge has denied a similar motion for a preliminary injunction.

The Sandbar in Lawrence is challenging the bar curfew imposed by Douglas County health officer Dr. Thomas Marcellino. Like the Wichita case, the Lawrence case also alleges a constitutional due process violation.

The Douglas County health order, at the time of the filing, required bars and restaurants to stop serving alcohol at 11 p.m. and close by midnight. The updated order now has a 10 p.m. curfew.

Judge Eric Melgren denied The Sandbar’s request for a preliminary injunction in a Nov. 19 order. He wrote that a liquor license is a privilege and not constitutional property.

“Although the Supreme Court has recognized a liberty interest in the right of individuals to work, it has not addressed the extent to which such a right protects business operations,” Melgren wrote. “Further, the Tenth Circuit has opined that ‘it seems self-evident that [businessowners] have a significant interest in the health and success’ of their businesses, but has not explicitly held that the interest is constitutionally protected, and other courts have split on the issue.”

“Because Plaintiffs have not met their burden as to the existence of a protected liberty interest, the Court need not analyze whether Plaintiffs were afforded an appropriate level of procedural due process.”