Rocking R Bar

Pedestrians walk past the Rocking R Bar in Bozeman on Jan. 14.

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Despite an order from the state’s attorney general to dismiss a case, the Gallatin City-County Board of Health joined the county’s health officer in continuing its lawsuit against the Rocking R Bar for violating a 10 p.m. closing time ordered by the board to stem the spread of the coronavirus.

At a virtual meeting Wednesday morning, the board voted 7-1 to direct County Attorney Marty Lambert to continue the case and uphold the rules. Gallatin County Commissioner Joe Skinner was the lone vote against continuing the suit.

The vote followed public comment from four people, who urged the board to drop the suit and other health rules that were hurting businesses. They called the lawsuit “completely out of line” and said the health rule was “capricious,” “arbitrary” and there was “no science to back this up.”

Becky Franks, the board’s chair, said she was in favor of continuing the case because not doing so would send the message that businesses may pick what rules they want to follow. She said she understands that tough decisions have been made by businesses, but that shouldn’t allow them to pick which rules to follow solely based on what’s best for business.

“I think it’s important that when rules are set by the board of health or by the health department or by law enforcement, that those rules do need to be followed. The public doesn’t get to pick and choose which ones they like best,” Franks said.

The board of health and health officer Matt Kelley sued the Rocking R Bar after it violated several times a 10 p.m. closing time ordered by the county health board to slow the spread of COVID-19.

A Gallatin County judge in December granted the county a preliminary injunction, ordering the bar to comply with the health rules until March.

Last week, Montana Attorney General Austin Knudsen ordered Lambert to dismiss the case. Knudsen said in a news release last week that the rule “defies commonsense” and is “devastating to Montana workers and small businesses.” He said his action sends a message to reopen the state’s economy safely and “not allow overzealous local governments to hold Montana businesses and their employees hostage.”

At Wednesday’s meeting, Lambert told the board that Knudsen cited a law that gave him supervisory authority over county attorneys in the state over criminal cases, not civil cases. He said that meant Knudsen didn’t have the same authority over the matter.

Skinner, the lone no vote, said that as a county commissioner he is the only person who serves on the board who is responsible and accountable to taxpayers. If damages are sought in the case, he said, that would likely come out of the county’s general fund or raise the county’s insurance rates.

Skinner said he doesn’t think pursuing the lawsuit is worth risking the county’s money.

“The only thing we’re proving is that the board of health has a lot of power, and I think we get that. I think everybody sees that now,” he said. “I don’t see any advantage of continuing the suit.”

Cheryl Tusken, of Bozeman, wanted the board to drop the lawsuit and said the suit was “completely out of line.” She said there was no information that the disease is spreading here from bars and restaurants, and that it’s creating distrust among business owners in the area.

“I think you guys owe small businesses and Rocking R Bar an apology for singling them out and ruining their businesses,” Tusken said.

In an affidavit submitted as part of the case against the bar, Kelley said during the summer the county saw infections among people under 30 who were associated with staff and patrons at bars, restaurants, parties and other social settings. He said bars present a high risk for spreading the virus, and the closing times were necessary to reduce the potential of spreading the virus.

Board member Mari Eggers said the board received massive written public comment and she thought about 90% of that was people, including business owners, in support of continuing the case. She said business owners wrote that the rules allow them to stay open and make customers feel safe.

Eggers said that there was information from several states that showed going to a bar or restaurant increases your risk of becoming infected.

“This is absolutely an evidenced-based measure and that’s why the court found in our favor to begin with — we went through the science and there is substantial science upholding this,” she said.

Christopher Coburn, another board member, said the board doesn’t take pleasure in suing businesses, and that he hopes that the board doesn’t have to do it ever again. He said there is “light at the end of the tunnel” for the pandemic with new vaccines and potentially more support for businesses coming.

It’s important to remember, Coburn said, that the board is in the position because the Rocking R Bar refused to follow the guidelines. He said other businesses have partnered with the board to come up with ways to move through this pandemic.

“R Bar, in this case, chose not to do that, which is why we’re here,” Coburn said.

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Freddy Monares can be reached at or at 406-582-2630.