In a victory for common sense, the City of Emporia dropped their prosecution of a local restaurant owner after he was criminally charged for opening his facility, allegedly in defiance of Governor Laura Kelly’s shutdown orders.

The Gym — the name of the restaurant ordered shut down by county health officials — owned by Matt Flowers, has a food license and had served food in the past, yet, according to a release from the Kriegshauser Law Firm in Olathe — which defended Flowers — one local bureaucrat decided to order Flowers to shut down and slapped him with a citation that could have resulted in a $500 fine.

Never mind that Flowers — as he told the Emporia Gazette — hadn’t had any income from his restaurant in 70 days.

“This is a win for common sense and a loss for the Governor’s unintelligible, arbitrary shutdown orders,” said Josh Ney, co-counsel for the restaurant in the release. “If the government wants to prosecute Kansans for safely running their businesses, Governor Kelly needs to issue clear, non- discriminatory, and transparent orders. This case was appropriately dismissed by local authorities when the unenforceable nature of the Governor’s orders came to light.” 

According to the release, Lyon County had issued a declaration that the county would remain in “Modified Phase 2” of the Governor’s reopening plan which allowed “restaurants” to open but not “bars.” The order did not define “bar” or “restaurant.” In an onsite inspection the same day the declaration was issued, a local health official determined, based on her own legal interpretation, that the restaurant was a “bar” instead of a “restaurant.” 

The situation was eerily similar to the situation at the state level, in which an unknown bureaucrat named “Bill” was making decisions on which businesses were “essential” and which ones were not, in a largely arbitrary and unaccountable fashion — without due process.

“The Governor’s categorical shut-down orders threw local units of government under the bus,” said Flower’s legal counsel Ryan Kriegshauser in the release. “She pushed enforcement of her broadly written state shutdown orders on to local officials who are then forced to decide when and how to exercise arbitrary, unilateral power over the lives and livelihoods of Kansas citizens.” 

According to the release, Flowers’ case is just the tip of the iceberg.

“The Emporia municipal case has helped uncover deep and systemic violations of due process inherent in the Governor’s handling of the COVID-19 pandemic response, particularly related to her ‘business shut-down’ and ‘stay home’ orders,” the release read. “Based on these findings, a group of organizations has created the Trust Kansas Coalition to investigate government mismanagement of the COVID-19 Pandemic response. This investigation has already uncovered a disturbing trend of arbitrary decision-making by bureaucrats as well as an incredible lack of due process overall.”

Kriegshauser said via email Aug. 18, 2020, that this was the first active prosecution of a business shut-down order violation in the state.

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