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The fight between Gallatin County health officials and the Rocking R Bar landed in court on Tuesday, with the bar owner saying he’s losing money and health officials arguing the bar’s refusal to close at 10 p.m. is likely driving spread of the novel coronavirus.

The two sides met at a hearing in Gallatin County District Court on Tuesday. The county is asking that judge Rienne McElyea require the bar to comply with the closing time ordered by the county health board and Montana Gov. Steve Bullock. The bar claims the rule is arbitrary and unlawful to enforce.

During the hearing, Mike Hope, owner of the Rocking R Bar, said the bar is violating the rule requiring bars to close at 10 p.m. because it would further reduce the bar’s income in an already tough year. He said he’s out about $250,000 this year.

“You can’t sustain these kinds of numbers and stay in business,” Hope said.

On the other side, Gallatin City-County Health Officer Matt Kelley and Montana’s state medical officer Greg Holzman testified that the rule is necessary to try to slow the spread of the virus in the county.

The Gallatin City-County Board of Health and Kelley sued Rocking R Bar after it remained open past 10 p.m. on several occasions despite a warning that it was in violation of the health rules. Rocking R Bar has argued that the closing time is arbitrary and pushes people out to private residences, where health officials aren’t enforcing the rules.

The lawsuit comes amid rising tensions over health rules, with some people arguing that the regulations infringe on their freedom. Some people have gone as far as asking Kelley and other health officials to resign. Health officials say the rules are necessary to stem the spread of the virus.

Kelley and Holzman testified for the plaintiffs, as did Montana State University professors Dr. Raina Plowright and Dr. Seth Walk, who is also a health board member.

Hope was the only witness called by the defense. The hearing will continue on Wednesday at 9 a.m., when county attorney Marty Lambert will cross examine Hope.

Hope took up the last hour of Tuesday’s hearing, talking about his efforts working with Bullock and Republican Sen. Steve Daines on coronavirus-related policies. He spoke about the challenges he’s faced running the bar like promising to pay employees, adapting to policies and contact tracing when his employees contract the virus.

“It’s about my industry as a whole and it’s about the survival of my industry,” Hope said. “I’m only as good as everybody around me.”

Throughout the hearing, Brian Gallik, attorney for Rocking R Bar, tried to make the point that enforcement of the health rules didn’t extend into private residences. He said it’s possible that early closing times are driving people to have parties at home or in dorm rooms, where social distancing, mask requirements and strict sanitation guidelines are likely being flouted.

He also tried to discredit studies that Kelley and Holzman referenced showing that people who go to bars and restaurants were at a greater risk of contracting the virus. Gallik said those reports didn’t include whether the businesses were complying with rules meant to slow the spread of the virus.

Kelley said he would be “very concerned” if all bars and restaurants followed Rocking R Bar’s example and closed at 12:30 a.m.

“We would lose the progress that we made,” Kelley said, referring to the recent decrease in daily case numbers.

Around the time the restriction was put in place, Kelley said, the average positivity rate over a week was about 20%, which indicates “uncontrolled community spread.” There was a pattern in the transmission of the disease happening in Gallatin County, where it was showing up “first in people in their 20s, then it made its way to the rest of the population,” Kelley said.

That was concerning, he said, because some younger people work at long-term care facilities. Contact tracing showed cases in younger people led to infections in older people.

It’s a priority, Kelley said, to protect people living at long-term care facilities, but “that has become nearly impossible” with the amount of disease in the county.

Holzman said state health officials have been clear that a lot of people in closed spaces increases the risk of transmission. As people drink alcohol inside bars, he said, compliance with the rules “goes down.”

He referenced studies that showed test positivity rates in people older than 60 increasing shortly after positivity rates spiked in younger people. That’s why it’s important to slow transmission in younger populations, he said.

“They could be the start of the hotspot outbreaks that we see around the country,” Holzman said.

He also brought up weekly policy recommendations the White House sends to Montana. He said an August report recommended states in the red zone should consider closing bars and gyms. Red zone states have more than 100 cases per 100,000 people and a positivity rate of more than 10%.

“We are currently in the red zone as of last week,” Holzman said.

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Freddy Monares can be reached at fmonares@dailychronicle.com or at 406-582-2630.

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