UPDATED: Judge rules Boardwalk Bar and Grill must comply with state shutdown
The Boardwalk Bar and Grill intends to appeal the ruling.
A Polk County judge has ruled that the Boardwalk Bar and Grill in East Grand Forks must comply with Executive Order 20-99 and is prohibited from opening for dine-in services.
The ruling comes weeks after the East Grand Forks restaurant opened its dining room in defiance of Walz's order closing hospitality businesses in the state to slow the spread of COVID-19. Walz’s order was recently extended until Jan. 11.
But Jane Moss, owner of the Boardwalk, said the governor's order forced her to lay off 20 employees, with hundreds of thousands of dollars in potential income lost. She said that, facing permanent closure, she felt she was left with little choice but to open her doors.
When contacted by the Herald shortly after the order was issued Tuesday afternoon, Dec. 22, Moss said she was not aware of the ruling and couldn’t speak as to whether or not she would abide by it.
“I will have to speak to my lawyer before I say anything; I don't know,” she said.
Marshall Tanick, the Boardwalk’s Twin Cities-based attorney, said in a statement sent to the Herald that he intends to pursue an expedited appeal of the ruling through the state’s appellate court system.
Minnesota Attorney General Keith Ellison sued the Boardwalk after Moss opened her business on Dec. 9 in defiance of the order. On Dec. 11, Ellison’s office announced the Polk County District Court had granted a restraining order against the business, and, on Dec. 13, the Minnesota Department of Public Safety suspended the restaurant's liquor license for 60 days for disregarding that order.
The lawsuit against Moss remains in litigation. Tuesday’s ruling by Polk County District Judge Anne Marie Rasmusson reaffirms a temporary restraining order against the business issued by Polk County District Judge Corey Harbott. No upcoming court date has yet been set in the case.
“This is just a step in the lawsuit,” said John Stiles Deputy Chief of Staff at the Attorney General’s office. “They'll set up a trial schedule; they'll present more evidence. They'll decide at some point if there's going to be a trial, and if that's going to be a jury trial or a bench trial.”
At a civil hearing in Polk County District Court last week, Tanick argued that Walz’s executive order was unlawful because he failed to follow procedures set forth in state law, failed to have his actions authorized by the Legislature and violated the separation of powers principle by including criminal and civil penalties in the order.
Rasmusson disagreed with Tanick’s interpretation of the law, however, and ruled that Walz’s order was properly issued under the governor’s peacetime emergency powers. She noted that the Legislature is not required to authorize such executive orders, though it can vote to terminate them.
In her order, Rasmusson acknowledged the emotional and financial harm the executive order has had on bars and restaurants in Minnesota, especially in cities bordering on states with fewer restrictions, such as East Grand Forks.
The ruling came shortly after North Dakota Gov. Doug Burgum allowed drinking and dining establishments to resume their normal operating hours, beginning at 8 a.m. Tuesday, Dec. 22. Previously, those businesses could not serve guests on premises between 10 p.m. and 4 a.m. As of Monday, Dec. 21, active cases in North Dakota had declined from 10,293 on Nov. 13, to 2,655.
“The burden borne by Defendant, as businesses like Defendant, is higher than what most people are asked to bear,” Rasmusson wrote. “Yet, as detailed herein, the parties also agree that COVID-19 is a public health emergency. … The evidence is persuasive that if Defendant remains open to in-person dining, the health and safety of Minnesotans is at increased risk.”
Minnesota Department of Health contact tracing investigations have found that bars and restaurants are second only to nursing homes as COVID-19 hotspots in the state. In total, restaurants and bars in Minnesota have resulted in 448 confirmed COVID-19 outbreaks consisting of at least 4,145 confirmed cases.
The spread of COVID-19 is particularly high in northwestern Minnesota, including Polk County, where the positivity rate is about 13%, compared to roughly 8% in the rest of the state. Polk County relies significantly on Altru Health System in Grand Forks, which reported a hospital capacity of 95% at the beginning of December.
In her order, Rasmusson said that Executive Order 20-99 protects Minnesotans from illness and death resulting from COVID-19, but, at the same time, wreaks devastation on businesses in the state. She stated that, while an injunction is appropriate in this case, the ruling gives the court no joy.
“There are no winners in this case,” she said.