An ongoing criminal case concerning an Emporia bar’s alleged violation of a Lyon County Public Health order was dismissed this week.

“The City of Emporia decided to prosecute … based on a local ordinance that made it a crime to violate a local health order,” read a written release from Olathe-based Kriegshauser Law, which represented the establishment in the case. “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 Gym Sports Bar, located at 1516 W. 6th Ave., was originally issued a citation for the violation on May 27. During that time, the county was considered to be under a “modified Phase 2” of Governor Laura Kelly’s statewide reopening plan, which, among other requirements, mandated the closure of bars and nightclubs except in the case of establishments which offered curbside and carryout services. Restaurants, however, were allowed to open in a limited capacity.

According to owner Matt Flowers, much of his issues began when The Gym began serving food again, something which it had done long before any COVID-19-related closures.

“Food was an avenue for me to be able to open back up,” Flowers told The Gazette in a late-May interview. “I felt like I had the proper food license … The county health department sent people out, and one of the ladies asked me if I had had dine-in seating previously. I told them ‘yes,’ and as I understood it, they were going to send someone else out to see what my food sales were. When they came out, they didn’t really inspect anything, they just asked me if they could speak to me. She basically said, ‘At this time we’re going to have to ask you to close.’ I asked them what would happen if I didn’t, and was told the city would issue me a citation [of up to $500].”

Flowers said he was especially confused with the citation after talking with his friends in the industry, seeing as they seemingly were operating under the exact same food licenses, but had not yet been contacted by any health agencies.

“We weren’t specifically enforcing the Governor’s order,” said City Attorney Christina Montgomery in a Tuesday phone interview. “We were enforcing the county’s order which adopted [aspects of] the Governor’s order. So, it was definitely a little bit messy and complicated there.”

The uncertainty regarding restaurants combined with a general sense of vagueness surrounding the public health order itself, eventually became a major factor in the case’s dismissal.

“The order did not define ‘bar’ or ‘restaurant,’” continues the release. “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 … had a food service license and sold food.”

In getting the case dismissed, defense attorneys Ryan Kriegshauser and Josh Ney said they viewed the victory as not just for Flowers and The Gym, but for Kansas business owners at large.

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

“This is a win for common sense and a loss for the Governor’s unintelligible, arbitrary shutdown orders,” added Ney. “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.”