EMPORIA–Municipal authorities have dropped their case against the owner of a local restaurant in Emporia, Kansas after he was criminally charged for operating his business in violation of Governor Laura Kelly’s shutdown orders. The case was the only known attempted criminal prosecution in the state conducted pursuant to the Governor’s COVID-19 orders.
The City of Emporia decided to prosecute the restaurant based on a local ordinance that made it a crime to violate a local health order. The City contended a local order had broadly incorporated the Governor’s shut-down orders. The criminal action was dismissed in its entirety after legal counsel for the business owner filed a motion to dismiss highlighting the lack of due process and detail associated with the Governor’s orders.
"The Governor’s categorical shut-down orders threw local units of government under the bus," said legal counsel Ryan Kriegshauser. "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."
Lyon County had issued a declaration that the County would remain in "Modified Phase 2" of the Governor’s re-opening 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 Gym (which is the name of the restaurant) had a food service license and sold food.
"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. "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."