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Lawsuit: Kansas must pay business over COVID-19 restrictions

December 11, 2020 GMT
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Kansas Gov. Laura Kelly gives updates to the free testing strategies during a news conference, Wednesday, Dec. 9, 2020 at the Statehouse in Topeka, Kan. (Evert Nelson/The Topeka Capital-Journal via AP)
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Kansas Gov. Laura Kelly gives updates to the free testing strategies during a news conference, Wednesday, Dec. 9, 2020 at the Statehouse in Topeka, Kan. (Evert Nelson/The Topeka Capital-Journal via AP)

TOPEKA, Kan. (AP) — A Wichita fitness studio’s owner and his business are suing Kansas for compensation for being forced to shut down and reopen with restrictions this year because of the coronavirus pandemic, arguing that the state essentially used their property in attempting to limit the virus’ spread.

The lawsuit filed this week in Sedgwick County District Court by Ryan Floyd and Omega Bootcamps Inc. argues that the state used his and the business’ private property “for the benefit of the general public” when it and local officials imposed their restrictions. The lawsuit cites part of the state’s emergency management law that says people can pursue claims for compensation in court if their property is “commandeered or otherwise used” by state or local officials.

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“Use is exerting control, and control is shutting down the business, but they didn’t just shut down the business,” said Ryan Kreigshauser, an attorney for Floyd and his business. “They meddled in the operations of gyms. They said, ‘You can open, but not in-person classes; you can open, but you can’t open your locker rooms.’ And so they were more invasive.”

The Kansas attorney general’s office declined comment, saying it was reviewing the lawsuit. Gov. Laura Kelly’s office did not immediately respond Friday to a request for comment.

The lawsuit asks for a jury trial and the appointment of a panel of appraisers to determine how much money Floyd and his business would be due.

The Democratic governor kept a statewide stay-at-home order in place for five weeks in the spring, then imposed restrictions on reopening businesses. The Republican-controlled Legislature later forced her to accept local control over rules for businesses, as well as limits on gatherings and mandates for people to wear masks in public.

Kansas averaged fewer than 100 new confirmed and probable coronavirus cases a day in early and mid-June, but it has averaged more than 2,400 a day since Nov. 1. The state Department of Health and Environment has reported more than 100,000 cases since the start of November, or one for every 29 of the state’s residents.

Recent cases include an unnamed state legislator who tested positive after attending organizational meetings Monday at the Statehouse. House Speaker Ron Ryckman Jr., an Olathe Republican, notified colleagues and staff Friday by email. At least five lawmakers, including Ryckman, have tested positive during the pandemic.

State officials expect that Kansas’ first doses of a coronavirus vaccine made by Pfizer will be administered next week, with at-risk health care workers and nursing home residents first in line. It could be months before a vaccine is available to everyone.

Kelly also is hoping that Congress approves another coronavirus relief package, with the pressure in Washington intense and negotiations ongoing over a $900 billion-plus package. Kelly has argued for months that states and local governments need direct aid, and she told legislative leaders Friday that if Congress doesn’t deliver, Kansas would face covering the costs of a program aimed at boosting coronavirus testing that would cost the state $120 million over only eight weeks.

The governor and her top emergency management official also told top lawmakers that medical gloves are difficult to find, forcing the state to use a “black market” to find them, without being more specific.

Kelly ordered flags to fly at half-staff at state buildings until sundown Monday to honor people who have died from COVID-19. The state health department reported an additional 131 deaths since Wednesday to bring the total to 2,072. The governor also ordered flags to fly at half-staff Oct. 28, when the state surpassed 1,000 COVID-19 deaths.

The state health department reported 5,491 new coronavirus cases since Wednesday, to bring the total to 185,294. The department also reported an additional 146 coronavirus hospitalizations over two days, to bring the total to 5,800. Kansas has averaged 48 new hospitalizations and 25 deaths a day since Nov. 1.

The fitness studio owner’s lawsuit came about two weeks after bar and other business owners in Wichita, the state’s largest city, filed a lawsuit against local officials challenging their pandemic restrictions and seeking to return Sedgwick County to pre-pandemic business rules. Attorneys for both sides had that case moved to federal court because those business owners are arguing that their rights under the U.S. Constitution, including free speech and due legal process, are being violated.

But the second lawsuit focuses on potential compensation under state law. Attorneys for Floyd and his business said the provision in Kansas’ emergency management law is similar to provisions in at least 14 other states’ laws, including Michigan, New Jersey and Texas.

“If ‘use’ doesn’t mean what we think it is, we think public policymakers should know that,” said Josh Ney, another attorney for Floyd and his business. “It’s important for property owners to know this going forward, what their recourse is.”

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Follow John Hanna on Twitter: https://twitter.com/apjdhanna