Instead of challenging orders, Wichita gym owner wants state to pay for COVID-19 shutdown
A Sedgwick County man and his gym are demanding the state pay up over springtime business shutdowns meant to slow the spread of the virus that causes COVID-19.
In a lawsuit filed Wednesday in Sedgwick County District Court, Ryan Floyd and Omega Bootcamps Inc. argue they are “entitled to compensation” under a Kansas law that allows people to recoup losses when the government commandeers private property “to help cope” with a disaster during an emergency declaration.
Floyd and Omega Bootcamps Inc. contend the state’s shutdown this spring of gyms and fitness centers as well as subsequent restrictions on their reopening amounts to “government use” of his business, making them eligible to submit a compensation claim under K.S.A. 48-933.
The lawsuit is different than others filed by businesses in response to government closures and restrictions on their operations because it seeks payment under an existing law rather than challenging the validity of emergency orders that have come under fire by the business sector since shutdowns started in March.
The Kansas Attorney General’s Office, in an emailed statement, said it is “reviewing the lawsuit and have no comment at this time.”
Floyd’s attorney, Ryan Kriegshauser, says he thinks the case is the first of its kind in Kansas — and possibility nationwide.
If it’s successful, he’s certain more will follow.
“What this lawsuit is is a very clean, simple, concise claim” on existing Kansas law, Kriegshauser said, instead of focusing on Constitutional arguments like other businesses’ lawsuits risk “getting bogged down” in federal court.
“We’re not arguing about whether or not you can shut down a business or impose a curfew. We’re just saying if you do these things, you have to pay the business.”
Kriegshauser said the early emergency orders forced Floyd to close his gym, which is described in the lawsuit as a “specialized health and well-being semi-private fitness studio and gym,” for almost two months.
Floyd is Omega Bootcamps’ sole officer and shareholder. He is demanding a jury hear the case.
“The small businesses are the ones that are taking the brunt of the shutdown orders. ... They’re absorbing this massive burden on behalf of the general public,” Kriegshauser said.
“It stands to reason that small businesses that are being used to cope with this disaster should have a route to use some of this (federal and state disaster) funding as well.”
According to the lawsuit, Kansas Gov. Laura Kelly first issued a statewide disaster proclamation related to the COVID-19 pandemic on March 12. Four days later, the Sedgwick County Commission issued a similar local disaster proclamation.
Floyd says in the suit that by March 24 gymnasiums and fitness centers had been ordered to close under the emergency orders, which hampered his ability to use and run his business as he wished.
Since then, local public officials have continued to extend the county-level declaration and “there is genuine belief that it will continue to be extended or re-issued as needed,” the lawsuit says.
“The government used Plaintiff’s property by asserting use proscriptions and control of Plaintiff’s property for the benefit of the general public to control the spread of the COVID-19 virus,” the suit argues.
While Kansas Emergency Management Act “grants extraordinary powers” to local and state officials to issue orders “directing the commandeering or use of private property interests to cope with a disaster,” it also “provides that private property owners shall be compensated in the event property is commandeered or otherwise used in coping with a disaster,” it says.
Later emergency orders that allowed gyms and fitness centers to open but barred in-person group classes, kept locker rooms closed and required social distancing, facility cleaning and occupancy limits also amounted to the state using Floyd’s business, the lawsuit argues.
Locker room closures had an especially hard economic impact because “patrons were not allowed to change or shower, which decreased business overall,” the suit says.
The lawsuit notes that while Sedgwick County is also a “governmental entity subject to a claim for use compensation” under the same law, it “is not being added as a defendant to this lawsuit as a party at this time.”
But it could be included at a later date, Kriegshauser said.
“If we are successful, you will see lot of these lawsuits. Small businesses are getting crushed right now.”
This story was originally published December 11, 2020 at 11:37 AM.
