March 24, 2023

Keeping Media and Government Accountable.

Sandbar suit leads to legislative due process victory

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The Sandbar in Lawrence yesterday dismissed a lawsuit that prompted Kansas legislators to fix the Kansas Emergency Management Act. Sandbar owner Peach Madl sued the Douglas County health officer last fall after the county issued an order that created a bar curfew. The emergency order required bars to stop serving alcohol at 11 p.m. and to close by midnight.

Madl partnered with the Kansas Justice Institute to file the lawsuit. The suit argued that business owners should receive a hearing when health official orders limit commercial activity.

“When a local health officer issues a COVID-19 order impacting a business, there should be some recourse for the business owners,” Sam MacRoberts, litigation director for KJI, said at the time of the lawsuit filing. (Kansas Policy Institute owns both KJI and the Sentinel.) 

Lawmakers updated the Kansas Emergency Management Act in March with the passage of Senate Bill 40. The new law provides due process hearings for anyone aggrieved by government response to any emergency, but specifically, to COVID-19. Under the new law, emergency orders use the least restrictive means available for mitigation efforts.

SB 40 provides due process for business owners

MacRoberts said SB 40 makes it difficult for local health officers to impose similar bar curfews in the future.

Sam MacRoberts, litigation director for the Kansas Justice Institute

“At a hearing, the government would have the burden of proving that a bar curfew was appropriate and I think they’d have a hard time doing that under SB 40,” he said. “In our view, it just doesn’t make sense to reduce bar hours. That doesn’t help stem the spread of COVID. I think a local health officer is going to think twice about imposing something like a bar curfew in the future.”

MacRoberts said lawmakers responded to the lawsuit by creating the very process for which the Sandbar lawsuit advocated. The KEMA overhaul allows business owners the right to request a hearing within 72 hours of the issuance of an emergency order. It also allows businesses to file civil suits to seek relief.

“I don’t think the SB 40 process would exist if it weren’t for Peach and the Sandbar lawsuit. I am so thankful she had the courage to stand up and push back against what we believe was an unreasonable health order,” MacRoberts said.

The Sandbar is open for business and back to normal business hours.

“We continue to take measures to keep our friends and staff healthy and are just so pleased that we now have a right to be heard,” Madl said. “We wanted to make our case that we were taking the necessary steps to keep folks safe, and that is now part of state law. We couldn’t be happier and look forward to welcoming Kansans for a safe drink anytime.”

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