As some businesses across Minnesota continue to defy Gov. Tim Walz's orders to remain closed to in-person dining, a question persists: What, if anything, can the state do to compel them to comply?
Since Walz shut down restaurants for in-person dining in November and later extended his order through Jan. 10, the Interchange Wine & Coffee Bistro in Albert Lea has been open for all but two days — Christmas and New Year's. A lawsuit filed by Attorney General Keith Ellison and subsequent court orders have had no effect. The restaurant not only has stayed open, but on Sunday, owner Lisa Hanson led a protest march from City Hall to the courthouse in downtown Albert Lea.
"As far as I'm concerned, I'm doing business as normal," said Hanson, who has no plans to adjust her restaurant's usual hours. "We need to educate the people as far as what is law, what is lawful and what the Constitution says."
Walz plans to announce Wednesday that he will loosen restrictions on bars and restaurants in Minnesota, which emerged from the holidays with hopeful signs of declining COVID-19 hospitalizations and a rising number of vaccinations. Fitness classes, swimming pools and amateur sports practices resumed on Monday, but the governor's order keeps indoor service at bars and restaurants closed through Sunday. Whether they will be allowed to reopen at partial or full capacity is unclear.
What also isn't clear is what will be the long-term consequences, if any, paid by defiant bar and restaurant owners.
Lisa Monet Zarza appeared, virtually, in a Dakota County hearing Tuesday to determine whether she was in contempt of court for reopening her Alibi Drinkery in Lakeville to in-person dining. Zarza had closed the establishment she co-owns after Walz first issued his order but later reopened to overflow crowds. A lunchtime crowd of 30 to 35 people, none wearing masks, casually drank and dined early Monday afternoon.
A decision by the court is pending. If Dakota County District Judge Jerome Abrams finds Zarza in contempt of his previous order to shut down, he could fine her or have her jailed.
The question then might be who would enforce the judge's order? Until now, neither Lakeville police nor city officials have moved to enforce steps taken against the eatery. City officials have not returned calls seeking comment.
Lakeville Mayor Douglas Anderson last week issued a statement calling Alibi's reopening "disappointing." He went on to say: "The enforcement process takes time and is a coordinated effort with state agencies. As for the current status, the judge upheld the State's restraining order and we are awaiting word on enforcement direction and any penalties for not obeying."
In Albert Lea, Hanson said local law enforcement has been sympathetic to her situation after she spoke with local police and the sheriff.
"I get the feeling that neither of them really want to [enforce Walz's order]," she said.
Albert Lea Public Safety Director JD Carlson did not return a call seeking comment. Freeborn County Sheriff Kurt Freitag said he has serious misgivings about enforcing the governor's order regarding bars and restaurants.
"Although I believe the governor's orders are lawful, I question if all the elements are right. Is it the right thing for me to do?" he said Tuesday. "Under the 14th Amendment to the Constitution, they have a right to due process and, with these orders, I feel their property has been abridged."
Government should err "on the side of people," Freitag said. "Government should be for the people and I just question this whole thing that's going on right now."
Freitag called it an issue of fairness. While a radar-wielding deputy has the authority to pull over a driver going 57 mph on a highway with a 55 mph limit, he said, "it's not right."
But Ellison said that comparison isn't fair. COVID-19 is a deadly disease. Temporarily closing restaurants to blunt virus transmission is more like a deputy stopping a car going 90 mph on a residential street, he said. Local law enforcement shouldn't be reluctant to enforce the governor's orders against defiant businesses, he added.
Ellison's office has said that a number of lawsuits have been filed challenging the constitutionality of the governor's executive orders, and so far, all have failed on every motion or have been dismissed.
"If a person who swears to uphold the law won't do it because they don't agree with it, that's a problem," Ellison said. "A sheriff who refuses to enforce a court's order is more serious."
There are other options to enforce compliance, he said. If a business owner refuses to pay fines, the fines can keep accruing until they become too big to ignore. If police or a sheriff refuse to make a court-ordered arrest, Ellison said he believes the state Department of Public Safety would have authority to step in and make the arrest instead. And if a court suspends an eatery's liquor license, even if they continue to serve alcohol, eventually the lack of a license would mean their suppliers would have to stop restocking them.
Two more establishments — Patrick McGovern's Pub in St. Paul and Norm's Wayside in Buffalo — were cited last week by the Minnesota Department of Health for violating Walz's order. Both were served with license suspensions, the department said Tuesday. Norm's Wayside also received a cease-and-desist order.
"What do we do?" Ellison said when asked for his options if businesses continue refusing to comply. "We do our best."
Late last week, the Minnesota Department of Public Safety notified Alibi Drinkery and the Interchange that they face a five-year liquor license revocation for "ongoing and blatant violations." Hearings on each have been scheduled for Feb. 3.