Democrat Kansas Governor Laura Kelly announced Tuesday that the state would be moving into “Phase 2” of her reopening plan on Monday, but for reasons she won’t disclose, she won’t permit bars and nightclubs to open until Phase 3.  She also won’t say when she’ll allow Phase 3 to begin. 

Both her original plan announced on April 30 and her May 14 revised plan had bars and nightclubs opening in Phase 2, along with non-tribal casinos and movie theaters.  This Version 3 of her plan allows non-tribal casinos and movie theaters to open, but not bars and nightclubs.

One of those small bars that not allowed to reopen is Pop-a-Top in Ottawa, Kansas.

Danny and Amanda Main own the 2,500 square-foot watering hole and have not been allowed to serve customers simply because they have no kitchen. Several other bars in the town are open because they serve food — something Main said they are working to remedy.

According to Danny Main, some of those other establishments close their kitchens in the late evening, but remain open until 2 a.m. serving alcohol.

What he said he does not understand, is why those restaurants don’t become “bars” as soon as the kitchen closes, or why his establishment is different. He notes that with their outdoor patio, Pop-A-Top can adhere to social distancing guidelines and restrict patron numbers.

“I mean, if you’re not serving food at that time, technically, you’re a bar,” Main said. “Our thought process is, if you’re allowed to operate as a bar and you’re allowed to be open, why are we not allowed to be?”

It’s a good question, and one of several the Sentinel put to Kelly’s administration last week.

The Sentinel, on May 16, reached out to Kelly Press Secretary Lauren Fitzgerald, and asked five simple questions:

  1. How do you distinguish a bar from a nightclub?
  2. What is the definition of a ‘bar?’  What distinguishes a ‘bar’ from a ‘nightclub’?
  3. On a Zoom call Friday, you said bars might not be able to place tables to ensure social distancing, and they tend to have crowds. But couldn’t the same be true of some restaurants?  Also, why couldn’t bars open if they have tables with social distancing?
  4. You also said bar owners don’t have nearly the same ability to manage customers as restaurants.  Is that because bar owners are less capable than restaurant owners?  Or does your comment go to the nature of customers in restaurants vs. bars? 
  5. What is the scientific basis for requiring restaurants to have 6-foot social distancing with physical barriers but not other businesses?  How do you respond to restaurant owners and employees who believe your order discriminates against them?

At the time of this writing, no response had been received, and in the wake of Kelly’s announcement that she was accelerating the move to Phase 2 — just days after announcing a new “Phase 1.5” and just a day before a scheduled meeting with President Donald Trump — the Sentinel asked two follow-up questions:

  1. Her original reopening plan – we’ll call that Version 1 – allowed bars and nightclubs to open in Phase 2.  Version 2, dated May 14, also allowed them to open in Phase 2.   But Version 3 announced today says bars and nightclubs are not allowed to open in Phase 2.  The same is true of swimming pools.  What specifically changed that prompted the changes in the new order?
  2. Also, since there are still 21 counties with no cases and another 23 counties with three or fewer cases, why not allow local authorities to use their own judgment instead of imposing blanket restrictions on all counties.  You seem to trust them to know when to be more restrictive; why not trust them to know when to be less restrictive?

Dave Trabert, chief executive officer of Kansas Policy Institute (which owns the Sentinel), says Governor Kelly may not have to answer our questions, but someone who campaigned on transparency should be forthright with citizens.

“Media would demand answers from a Republican governor like Sam Brownback, and they’d rightfully take him to task for not providing specifics.  Can you imagine the editorial howling if Sam Brownback said ‘we’ll move to Phase 2 whenever I feel the time is right’? But Governor Kelly won’t identify specific targets for lifting restrictions and she seems to arbitrarily decide who is allowed to open.”

Whether those questions will be answered remains to be seen, but it is clear that bars and nightclubs are being treated differently than “bar and grill” establishments that are classified as restaurants, even if much of their revenue comes from alcohol sales. In 1986 individual counties were allowed to set their own “liquor by the drink” policies, and most opted for a requirement that at least 30 percent of sales must come from food — and three counties remain “dry.”

Main said the issue, to him, is that all establishments which serve liquor should be treated equally.

“If it was up to me? I would have all the bars open up,” he said. “Restaurants are allowed to open … all these other places are allowed to open … you’d think that all the people going out to these establishments should be equal among everybody.”

Trabert wonders if Kelly’s different treatment of bars and nightclubs goes to her perception of their patrons.

“Six-foot distancing in a restaurant is no different in a bar.  She won’t come right out and say it, but her comments on the Zoom call last week made it sound as though she puts bar patrons and managers in a different class of people than other establishments.”

Main said that a large percentage of the bar-goers in Ottawa end up at his establishment and the losses are mounting for him — and for other bar owners as well.

“Now think about all the money I’m losing over the last two months,” he said. “It’s not just me fighting for my bar … I want to fight for all the small businesses in this town that are shut down.

“I believe a town’s economy relies on the small businesses within it to survive. How many of these are not going to be able to open back up after this?”

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