MN Attorney General Cracks Down on Defiant Restaurants
Minnesota attorney general Keith Ellison announced late Tuesday that his office is now suing three more Minnesota establishments for failing to comply with Gov. Tim Walz’s order to halt indoor dining.
The latest establishments to be sued are St. Patrick’s Tavern & Restaurant in New Prague, Pour House Bar & Grill in Clarks Grove, and The Interchange Wine & Coffee Bistro in Albert Lea.
The attorney general already brought similar suits against two other Minnesota establishments earlier this month; in both of those cases, courts have ruled in Ellison’s favor. In total, Ellison has opened 10 lawsuits.
The Boardwalk Bar & Grill in East Grand Forks—one of the restaurants that’s been court ordered to close—made headlines earlier this month when owner Jane Moss resumed indoor dining in open defiance of Walz’s orders. Marshall Tanick, a Twin Cities lawyer representing Boardwalk, says he knew the restaurant’s case would be tough from the start.
Since the governor’s latest order was announced a week ago, Tanick says he’s received several calls from concerned restaurants.
“I’ve gotten a number of calls, and what I have told people is that this is more than an uphill fight. It’s an up mountain fight,” Tanick said. “That doesn’t mean it can’t be scaled, but because of the political climate, these are very difficult cases.”
In his view, though, the legal issues in the case are “substantial,” noting that his client plans to appeal a local county court’s ruling. Located along the North Dakota border, Boardwalk faces a unique legal situation, Tanick said. In North Dakota, indoor dining has never been restricted throughout the pandemic. Tanick maintains that the governor’s order is in violation of the Constitution’s Interstate Commerce Clause, among other provisions.
“Three hundred yards away, everything’s open,” Tanick said. “Three hundred yards away are nine different competing establishments.”
But so far, Minnesota courts haven’t seen it Tanick’s way. In a ruling issued Tuesday, the Polk County District Court acknowledged that Boardwalk is in a “unique position because of its location on the border of North Dakota,” but still granted Ellison’s motion for a temporary injunction.
“While the court has determined that a temporary Injunction is appropriate to impose the restrictions detailed in [Walz’s order], the state acknowledges that it takes no joy in this enforcement action,” the Polk County Court wrote. “The parties in this case understand the impossible choices that must be made and the emotional and financial toll imposed by these choices.”
Still, Boardwalk and other Minnesota restaurants feel that fighting the order is the only choice they have. Tanick said Boardwalk has lost more than $250,000 and 80 percent of its employees since the start of the pandemic. As Boardwalk owner Moss recently told Fargo news station WDAY: “What have I got to lose? I have to go out fighting.”
And, of course, as revenue declines, establishments still have landlords and creditors to contend with. “Some restaurants are willing to push to the limit, not in a way to purposely be unsafe. But instead they’re trying to sustain employees and sustain livelihood in an industry that’s been hit arguably hardest by Covid-19 restrictions,” said George Singer, a partner with Minneapolis law firm Ballard Spahr LLP who’s not involved in the cases.
Walz’s order does allow the state to seek fees from restaurants for failing to comply, though Singer said it likely won’t be the first course of action. “Levying fines on people that can’t afford them in the first place doesn’t necessarily accomplish the objectives of enforcement,” he said.
Late Wednesday, Ellison’s office released another statement noting that the attorney general does have the authority to obtain up fines for up to $25,000.
Though Boardwalk plans to appeal the recent court decision, the restaurant has since closed for indoor dining.
Meanwhile, John Stiles, spokesman for Ellison’s office, noted that most restaurants in the state have been compliant. There have been a few that planned to reopen, but decided not to when the attorney general called.
“We always try to contact establishments first. We don’t sue out of the blue,” Stiles said. “The approach is always one of education.”
He emphasized that the attorney general office isn’t working alone in enforcing the governor’s order.
“This a cooperative and coordinated effort,” Stiles said. “Multiple agencies of the state are coming together to use the authority that they have to protect all Minnesotans from the spread of Covid-19.”