July 20, 2024

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Gym owner sues state, alleging shutdown commandeered his business

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A Wichita gym owner is suing the State of Kansas over COVID lockdowns, claiming the shutdown earlier this year constituted governmental “use” of his property for which he is owed compensation.

On December 8, 2020, Ryan Floyd, owner of Omega Bootcamps, Inc., through his attorneys Ryan A. Kriegshauser and Joshua Ney, filed the lawsuit in Sedgwick County District Court.

The petition states Floyd is seeking “… compensation from the State of Kansas … for use of (his) business property in coping with the COVID-19 pandemic. Since the initial state and local emergency declarations in March 2020, the State and Sedgwick County … have issued sequential emergency public health orders pursuant to the Kansas Emergency Management Act … to mitigate the spread of COVID-19. Such emergency orders both prohibited business use of (Floyd’s) property and constituted government use of the property in coping with the declaration of the pandemic. The government used (Floyd’s) property by asserting use proscriptions and control over Plaintiff’s property for the benefit of the general public to control the spread of COVID-19 virus.”

At the heart of the issue, according to a release related to the lawsuit, is the designation of “essential” vs. “non-essential” in KEMA.

Governor Kelly’s administration used that framework, as defined by the Kansas Emergency Functions Framework to — in theory — determine which businesses were “essential” and which were not. 

“The state of Kansas arbitrarily picked selected businesses and defined them as essential or non-essential,” Kriegshauser said in a release. “By picking winners and losers, state and local governments decided which businesses could remain open and which businesses had to close. If government decides these closures are necessary for the best interest of the general public then they must provide compensation to these targeted private businesses whose livelihoods they impacted.”

Kriegshauser and Ney say a use compensation provision of the Kansas Emergency Management Act requires the state and Sedgwick County to pay Floyd because by forcing a shutdown, they essentially commandeered his business to respond to the pandemic.

The statute states, in part, that a business owner may be entitled to compensation if: “… the claimant may not be deemed to have volunteered services or property without compensation,” and “Compensation for property shall be only if the property was commandeered or  otherwise used in coping with a disaster and its use or destruction was ordered by the  governor, adjutant general, an official of a county, city or interjurisdictional disaster  agency, or some other authorized member of the emergency management forces of this state.”

Floyd contends that the shutdown and designation as “non-essential” meant that the state was — in effect — commandeering and using his property under the law.

The lawsuit is different from other pending actions because it is a state, rather than a federal case, and focuses specifically on Kansas statutes, Ney said in a release.

“This case represents a novel approach to small business relief that invokes a rarely used state statutory procedure instead of a constitutional challenge,” Ney said. “Numerous states have similar statutes.” 

Federal Suit Pending as Well

Many of the largest names in the Wichita nightclub scene have also filed suit, but are doing it in federal court, alleging First Amendment violations.

“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.”

Since a new mask and curfew order, from Sedgwick County Health Officer Dr. Garold Minns went into effect on Nov. 13, according to the Wichita Eagle, Revolution Lounge Owner Kyle Okumura said in an affidavit his revenue is down 90 percent.

“Business operations have currently (ceased) as of November 13, 2020 and thus all current employees have been temporarily laid off,” the affidavit said.

According to the Eagle, the nightclub’s attorney, David Miller, is planning to file a preliminary injunction, to halt enforcement of the order, while the court case is pending.

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