Gov. Laura Kelly says municipal government orders forcing businesses to keep records of customer visitors is excessive; Linn County business owners file lawsuit challenging a county directive that companies compile information on patrons; McPherson barber shop issue cut down; KDHE and KU test wastewater for virus

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TOPEKA — Gov. Laura Kelly said city or county orders requiring businesses to keep records of consumer visits was unreasonable and an alternative voluntary approach with individuals keeping a journal of their public activity might be sufficient to assist health officials with contact tracing of COVID-19.


The Linn County health director issued a May 4 order requiring many businesses to record names, contact numbers and the time and date of interactions with clients, patrons or customers for at least 30 days to help find people potentially infected with the virus. In addition, officials in Kansas City, Mo., developed rules for reopening restaurants Friday that "strongly encouraged" maintenance of records on all customers who stayed in the business more than 10 minutes.


"I think that’s going a little bit too far. I don’t see us doing that," Kelly said Monday during a news briefing at the Capitol. "My gut is that that’s an awful lot to ask of people."


She said it was essential Kansans continue to adhere to social distancing protocols to avoid transmission of the coronavirus.


Lee Norman, secretary of the Kansas Department of Health and Environment, said the agency hadn’t recommended municipal governments compel businesses to compile information of customers. However, he said, that would be "terrifically helpful" in an outbreak.


He said KDHE and local health departments were grappling with 78 clusters of infection, including 29 private businesses with 129 cases and five deaths, 24 long-term care facilities with 575 and 92 deaths, nine church or other gatherings with 114 cases and nine deaths, and seven meatpacking plants with 1,280 cases and two deaths.


Federal lawsuit


A Linn County newspaper publisher and a La Cygne restaurant owner filed a federal lawsuit Sunday challenging constitutionality of Linn County’s requirement that businesses compile information on customers that might be useful in tracing people infected with the coronavirus.


Jackie Taylor, owner and publisher of Linn County News, and Linda Jo Hisel, who operates Nana Jo’s restaurant in La Cygne, are plaintiffs in the lawsuit against Jay Allen, a physician who serves as the county’s health director, and the Linn County Commission.


Taylor and Hisel said they went to court to reverse the public health order mandating physicians, attorneys, pharmacists, veterinarians, dentists, bankers, accountants, restaurant managers and other business operators document in-store customer names, telephone numbers, and the date and time of arrivals and departures.


The information could be sought by Linn County officials involved in identifying people who may have inadvertently come in contact with an individual infected with COVID-19. The objective is to pinpoint people with the virus to help reduce spread.


Violations of the countywide order could result in a $500 fine. The patron, patient, client or customer information must be maintained for 30 days.


"We have a great deal of trust in our county officials, but this just goes too far," Taylor said. "COVID is serious, but we can’t let our most basic rights be eroded."


On Monday, KDHE reported six cases of coronavirus in Linn County. In Kansas, KDHE says, 7,116 cases of COVID-19 have been discovered through testing. The virus has been a contributing factor in the death of 158 Kansas residents, KDHE said.


’Warrantless searches’


Sam MacRoberts, an attorney with the Kansas Justice Institute, alleged violation of the Fourth and 14th amendments to the U.S. Constitution in the lawsuit filed on behalf of Taylor and Hisel in federal court.


He said constitutional rights shouldn’t be sacrificed during a pandemic.


"Government officials cannot be permitted to conduct warrantless searches," MacRoberts said. "There is a clear process by which governments can obtain business and personal records. Unfortunately, Linn County has ignored that process and put the basic rights of its citizens in serious jeopardy."


Hisel said customers at her restaurant were "practically family" and government shouldn’t expect her to keep track of those people.


In March, Hisel posted to Facebook a prayer urging Jesus to eradicate COVID-19.


"We will not tolerate the enemy inciting fear in us," she said. "We condemn and rebuke the enemy right now and we bind him from telling lies that cause us not to trust you."


The Kansas governor on May 4 lifted a statewide stay-at-home order and initiated a phased process of reopening the economy. At this juncture, county officials could impose more stringent restrictions that the state, but not less restrictive, in response to COVID-19.


Politics of barbering


On Sunday, the threat of arrest for a McPherson barber shop proprietor was apparently resolved after a pair of U.S. Senate candidates denounced reaction of local authorities to barber Luke Ace Aichele’s decision to run his business during the pandemic.


Barbers and hair stylists aren’t allowed to open under the first phase of the governor’s statewide directive.


Aichele, of Luke’s Barber Shop, posted to Facebook that the threat of arrest had been rescinded. He created a public controversy Friday by posting that he had received an an arrest warrant.


Kansas Senate President Susan Wagle and U.S. Rep. Roger Marshall, who are competing for the Republican Party’s nomination for U.S. Senate, said on Twitter that Aichele should be allowed to operate his shop if following social distancing recommendations.


"It’s immoral to prevent those who want to work safely, with social distancing, from doing so," Wagle said.


Wastewater, COVID-19


Preliminary research with the University of Kansas and KDHE shows genetic remnants of COVID-19 in wastewater. The analysis may offer local health officials insight into how widespread the virus was in a community and influence measures to mitigate the spread.


The concept previously tested in the Netherlands and throughout the United States is based on the premise that people infected with the virus shed it through urine and feces. The genetic material can be extracted from wastewater and matched against markers keyed to COVID-19. The virus itself does not survive in wastewater, which isn’t a significant means of disease transmission.


Some indication of COVID-19’s genetic material was found in 10 of 12 samples taken in late April. Samples were taken from a large city and a small town, each in five northeast Kansas counties with multiple wastewater facilities and sampled in Lawrence and Topeka.


Results didn’t allow for estimates of the extent of infection in those communities. Researchers are at the presence-or-absence stage of the evaluation process.


"There is much more we need to refine in the methodology to assure quality control and that will start with further testing of samples," said Tom Stiles, KDHE’s director of the bureau of water.


"We don’t know how quantitative this approach can be, but we are hoping it gives us a means to corroborate our COVID testing of individuals, particularly in counties where positive cases have been low. Additionally, we may employ it as early warning surveillance should the virus come back in the fall or winter to give us a chance to get ahead of it," he said.


Drinking water wasn’t part of this study involving KU and KDHE. Disinfection by Kansas public water suppliers inactivates the virus.