‘We’re going to leave that to the state’: As Boardwalk opens for second day, East Grand Forks police won’t enforce Walz’s closure order
An East Grand Forks bar re-opened to dine-in customers on Wednesday and Thursday, despite an order from Gov. Tim Walz designed to slow the spread of a novel coronavirus. The city's police are leaving enforcement of that order up to the state powers-that-be.
A state-mandated shutdown, Boardwalk Bar and Grill co-owner Jane Moss noted, doesn’t stop her bills from coming in.
That’s why she re-opened her East Grand Forks business to dine-in traffic on Wednesday afternoon despite a gubernatorial order prohibiting it , and why she plans to continue to do so. And she’ll have the de facto blessing of city leaders while she does.
“I have to earn a living. My employees have to earn a living,” Moss said. “My back was up against the wall, and you either lay down and die, or you fight back for your legal right.”
Re-opening despite the order is Moss’ attempt to go down swinging. She imagines the Boardwalk, which had a financially “decent” summer, would survive if Gov. Tim Walz’s orders expired as planned on Dec. 18, but she expects the governor will extend them further into the winter, and Moss isn’t sure her business can make it that far. Business on Wednesday was about average for a pre-COVID Wednesday, Moss said, but considerably busier than a Wednesday during the pandemic.
When Moss first re-opened the Boardwalk, East Grand Forks Police Chief Mike Hedlund stopped by to hand her a copy of Walz’s order and point out the section she is allegedly violating. But enforcement, at least as of Thursday afternoon, hasn’t gone beyond that, and it might never come from the city government.
“We're not going to take any enforcement action against the Boardwalk ourselves, as the city of East Grand Forks,” Hedlund told the Herald on Thursday afternoon, about two hours before the restaurant was set to illegally reopen for a second day in a row. “We’re going to leave that to the state."
That means city police will escort workers from the Minnesota Department of Health to the restaurant, note whether the restaurant is open each day and document all of the above as needed -- but they won’t levy a fine themselves. Violating Walz’s order is a misdemeanor that could mean a fine of up to $1,000 or up to 90 days in jail for individuals, and up to $3,000 and a year in jail for business owners, managers or supervisors who encourage their employees to violate it.
Mayor Steve Gander said he, City Administrator David Murphy, Council President Mark Olstad and Hedlund informally agreed not to enforce the governor’s orders themselves beyond pointing out the part of the order a business was potentially violating and keeping the peace if, say, a customer refused to wear a mask in a business.
“We are staying the course with that and letting enforcement take place at the state level,” Gander said.
Hedlund said the general sentiment was that the order came from the state and, thus, should be enforced by it.
Gander described it as a “policy,” but didn’t know if it had been written down or otherwise recorded as such. It never approached a vote among East Grand Forks City Council members. Olstad did not return multiple Herald requests for comment Thursday, and Murphy was unavailable.
Policy or not, the governor’s orders carry the force of law, which means the city has an obligation to them, according to David Schultz, a professor at the University of Minnesota’s law school who has taught state and local law for about 25 years. In theory, the city should be enforcing Walz’s order and, possibly, considering a revocation of the Boardwalk’s liquor license, Schultz said.
“This is not a question of ‘am I going to give you a speeding ticket or give you a warning?’ kind of stuff,” Schultz told the Herald. “This is a pretty clear gubernatorial order of which it doesn't sound like there's any discretion.”
But there isn’t an easy way to compel Eastside police to enforce Walz’s orders. The governor or other state leaders could financially punish the city by pointing state aid elsewhere in future budget cycles, potentially, but more straight-and-narrow enforcement mechanisms would presumably need an extraordinary set of circumstances.
A pattern of nonenforcement -- or a worry that East Grand Forks could be the first of many cities to leave enforcement up to state agencies -- could be enough of a legal or political reason for Attorney General Keith Ellison to sue the city, Schultz said, but he felt that was unlikely after a single instance.
“What he's really relying upon is voluntary compliance with local governments to take the appropriate enforcement enforcement action,” Schultz said of Walz.
Staff at the Minnesota Department of Health did not return a Herald request for comment Thursday. The health department is leading whatever enforcement action state agencies take, according to John Stiles, Ellison's deputy chief of staff, and it reportedly sent Boardwalk staff a "cease and desist" letter on Thursday evening.
‘What would you choose?’
Justin LaRocque, who owns the Spud Jr., which sits about 100 yards from the Boardwalk, feels Moss’ decision to reopen is brave, and he suspects it garnered her a lot of fans.
“I'd be lying if I said the thought hadn’t crossed my mind to join her,” LaRocque said.
He won’t, at least for the moment, because the exhaust fan in the Spud Jr.’s kitchen broke recently, which means LaRocque can’t open even if he wanted to. For now, he’s waiting and watching the situation.
Patrick Boppre, co-owner of the Blue Moose, said Moss made a “tough decision” to re-open, and he can understand why she did it.
“Obviously, it's quite a big deal,” he said. “If your business was faced with this decision of closing down for good or going out fighting, I mean, what would you choose?”
The Blue Moose, he said, won’t re-open for dine-in while the restrictions are in place, and Boppre said he is waiting for an upcoming special legislative session next week in Minnesota that could, possibly, amend the restrictions placed on businesses like his.
Boppre said the fallout of Moss’s decision has been 50/50 positive and negative, but those who criticize the decision need to understand that being a border town poses problems, especially when restaurants are open on the other side of the river.
“Obviously, there's a lot of media coverage, but 300 yards down the road every restaurant is open,” he said. “I think they're unfairly getting raked over the coals for opening.”
The closure order means businesses’ main -- or sole -- source of revenue is curtailed or temporarily made illegal, which can put them in a tough spot because their expenses keep rolling in. At a meeting on Wednesday night where business leaders and a pair of Minnesota legislators railed against Walz’s closure order, Gander laid out the reasoning behind the Boardwalk’s re-opening succinctly: “This is what a business does when you push it into the corner, when it's in a fight for its very survival. This is the response you're going to get. It should not surprise anyone.”