In March and April, as the effects of the COVID-19 pandemic became apparent, the Kansas Division of Emergency Management responded to Gov. Laura Kelly’s executive order by summarily ordering select businesses to shut down.


Any business that did not meet the agency’s definition of "essential" had to close its doors. Violation was considered a Class A misdemeanor, punishable by up to a year in county jail and a fine of up to $2,500.


For example, the department decided that golf courses were essential and allowed them to remain open if they followed such reasonable safeguards as 6 feet of social distancing. But other businesses that could also operate outdoors with reasonable safeguards, such as photographers and personal trainers, were closed by the state. The state’s FAQ page for these decisions includes no details or justification for the disparate treatment.


My organization, Americans for Prosperity Foundation-Kansas, launched an investigation into how the state determined which businesses were essential and could remain open. And we have joined the Trust Kansas Coalition to continue to bring transparency and information about this issue to Kansans.


Documents produced in response to our Kansas Open Records Request and published in our investigative report revealed that businesses considered essential and allowed to remain open included liquor stores, vape and smoke shops, home renovators, pool cleaners, bait shops, and scrap gold and silver shops.


Businesses considered nonessential and thus closed, regardless of their ability to operate safely, included retail companies seeking to fulfill online orders without customer contact, photographers, dog groomers and personal trainers.


The confusion, bewilderment and harm to these businesses was evident in their requests to the state to allow them to operate.


For example, one small business owner in Salina wrote to the Division of Emergency Management pleading for permission to have one employee work alone in the warehouse to ship orders and save the jobs of 100 employees: "We are in favor of measures to protect our state’s citizens and our company’s employees. We wish to comply. This one small measure would make a massive difference for the lives of a great many people."


A Wichita business owner who wanted to operate with one employee fulfilling online orders wrote, "If allowed to do this we would be able to have some semblance of business income and provide our store managers with some form of income until we are able to resume normal business operations."


The state made no argument that the operations posed a health and safety risk. The industries were simply categorized as nonessential, so the requests were denied.


But there was one type of retailer considered essential that could continue operating to fulfill online orders: golf retailers.


We’re not picking on golf courses or golf retailers. But the favoritism showed by the state is a stark example of how this system failed the citizens of Kansas.


Our sister organizations, Americans for Prosperity, joined an open letter in March warning that "[t]he choice between ‘business as usual’ and ‘close all businesses’ is a false choice … businesses should not operate in a manner that risks public health and neither should businesses close down if they can operate in a manner that protects public health."


Kansas failed to achieve the right balance because the framework effectively picked winners and losers by industry instead of prioritizing the ability to operate safely. The framework needs to be rebuilt.


Otherwise, small business owners could again be unnecessarily harmed if Kansas is faced with another stay-at-home order to fight COVID-19.


Elizabeth Patton is state director of Americans for Prosperity Foundation-Kansas.