BOZEMAN, Mont. – A district court judge ruled from the bench Wednesday that a Bozeman bar must comply with a county health order intended to slow the spread of the coronavirus.
The Gallatin City County Health Board and health officer took Rocking R Bar to court after the popular watering hole intentionally stayed open late nine times in Nov. despite a health order curfew and warning.
Montana statute gives the public health officer the authority and duty to take actions to protect the public from infectious disease. Gallatin County says a Nov. 6 health order requiring bars, tasting rooms, distilleries, casinos and restaurants to close early was made in an effort to flatten the surge of COVID-19 cases, keep hospital beds open and improve contact tracing.
District Court Judge Rienne McElyea Wednesday ruled in favor of the county after two days of witness testimony.
“The county has the authority under the statute to make the rules here and that statute is presumed to be constitutionally intact,” McElyea said.
The injunction goes through Mar. 1, but if Rocking R Bar decides to litigate, the case could go to trial with a jury.
Last month, a Flathead County District Court judge denied the state’s request for a temporary restraining order against five businesses alleged to have violated Gov. Steve Bullock’s mask directive.
University of Montana Law Professor Anthony Johnstone says even though both cases are about compliance with health orders, there are some differences.
One is that the case in Flathead County came from state health authorities, which uses a slightly different set of laws authorizing their powers compared to county level authorities.
“But I think the reason why the cases came out differently was because in Flathead County, the judge thought that the state hadn’t proven a violation of the health directive. Whereas in Gallatin County, the bar had basically conceded,” Johnstone said.
Johnstone says since the case in Gallatin County was not trying to determine whether the Rocking R Bar had violated the 10 p.m. curfew, the outcome really hinged on whether the county had legal authorization to enforce a public health order, which the judge upheld Wednesday.
“It is ultimately up to the legislature what authority on behalf of Montanans it wants to provide those who are responsible for public health in the state,” Johnstone said.
He says at the county level, that includes allowing health officers to take decisive actions with respect to an emerging pandemic and at the state level, allowing the governor to use emergency powers to coordinate the state’s resources.
Montana lawmakers for the upcoming legislative session have requested more than a dozen bill drafts that aim to limit the authority of county public health officials and governors during declared emergencies.
The Gallatin City County Board of Health and health officer in Nov. asked a judge to issue a temporary restraining order and preliminary injunction against Rocking R Bar. The judge denied the temporary restraining order and scheduled a hearing for Dec. 15.
During the hearing in Bozeman, Montana’s State Medical Officer Greg Holzman answered questions about several studies showing an associated risk of COVID-19 with restaurants, bars and coffee shops.
“One, we know masks make a significant difference and obviously when you’re in a bar and restaurant, you’re eating, drinking, you will need to remove those masks. So that increases our risk,” Holzman said.
Holzman says one of the big concerns with bars is that as people drink more their inhibitions go down, meaning they may not follow public health guidelines as well.
Rocking R Bar owner Mike Hope says throughout the pandemic, he has tried to follow public health regulations and find solutions but that closing at 10 p.m. is not economically viable in his industry.
Hope says requiring bars close early also leads to people having more house parties where there’s no one there to manage behaviors.
“There’s nobody to monitor how much booze is being poured into a drink, how much wine is being poured into a drink. There’s no social distancing, there’s trading the cups back and forth,” Hope said.
Hope says his staff make sure patrons are wearing masks unless seated at a table, sanitize surfaces and cut people off if they’ve had too much to drink.
Hope was on Gov. Steve Bullock’s Coronavirus Relief Fund Task Force, which gave recommendations on how CARES Act money should be allocated.
Rocking R Bar received over $71,000 through coronavirus relief grants administered by the state, as well as a Paycheck Protection Program loan. Hope says the business’s net income is down $250,000 for the year.
Tuesday’s hearing lasted around seven hours and picked up again Wednesday morning. Other witnesses included a member of the Gallatin City-County Health Board, the county’s health officer and an infectious disease expert.
