EAST GRAND FORKS — No decision was made Friday afternoon, Dec. 18, in the state's lawsuit against Boardwalk Bar and Grill and its owner, Jane Moss, though the judge did extend the restraining order prohibiting the East Grand Forks establishment from allowing dine-in services until a judgment is issued.
Polk County District Judge Anne Marie Rasmusson heard arguments from both parties about whether an Executive Order prohibiting dine-in services at bars and restaurants is unconstitutional. She said before the arguments that she did not plan to make a decision on Friday, because she did not have time to review all of the court documents that were filed at the last minute.
The lawsuit was filed last week in Polk County District Court against the East Grand Forks restaurant by Attorney General Keith Ellison for violating Executive Order 20-99, which prohibits bars and restaurants from dine-in service. Shortly after the complaint was filed, a Polk County judge granted Ellison's request for a restraining order to keep the restaurant from allowing customers to eat on the premises.
When the restaurant last week refused to comply with the order, and opened for dine-in service that weekend, the state suspended its liquor license for 60 days with a threat of a five-year suspension if ownership continued to be noncompliant.
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On Dec. 14, the Boardwalk Bar and Grill Facebook page was updated to reflect that the restaurant would be closed "pending a court appearance."
Marshall Tanick, a Minneapolis attorney representing Boardwalk, argued that by enacting a unilateral shutdown without seeking legislative approval, Gov. Tim Walz unlawfully deprived restaurants from their constitutional rights. But Jason Pleggenkuhle, who represents the attorney general, said the defendants did "not even come close" to meeting the threshold for arguing that Walz's actions were unconstitutional.
Ramsey County District Court dismissed a similar case brought forward by the Free Minnesota Small Business Coalition in September.
Tanick also argued that it's unfair to restaurants and bars to be closed while retail stores and other establishments are allowed to remain open.
But the state said the governor's recommendation was data-based. The Minnesota Health Department has found that in retail stores – in which masked customers have only brief encounters with others – there has been minimal COVID-19 transmission. The same goes for beauty appointments, which include one-on-one interactions with various implemented safety standards, according to the state.
Bars and restaurants, where many people tend to congregate for long periods of time without masks, have resulted in significant community spread, Pleggenkuhle said, second only to nursing homes for the number of outbreaks in the state.
The Minnesota Department of Health has identified 448 outbreaks at Minnesota bars and restaurants, resulting in 4,145 confirmed positive cases, and likely many more secondary infections, Pleggenkuhle said.
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"The state takes no joy in having to bring an action like this, and the state understands it's a difficult time for businesses right now," he said. "But choosing to reopen for on-premises dining in violation of executive order 20-99 dangerous to public health and safety, and is unlawful."
The Herald's Adam Kurtz contributed to this report.
