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City leaders met Monday afternoon and Friday afternoon last week, eventually passing a COVID-19-related resolution declaring Milaca a business-friendly community. Council members stopped far short of taking any action that would have turned a blind eye to non-enforcement of Gov. Tim Walz’s stay-at-home executive order.

Milaca City Council members conducted two special meetings last week to address the continuing economic impact of the COVID-19 health crisis.

City leaders met Monday afternoon and Friday afternoon, ending the week by passing a resolution declaring Milaca a business-friendly community.

Council members stopped short of taking any local action that would have turned a blind eye to non-enforcement of Gov. Tim Walz’s stay-at-home executive order.

Council members first met to discuss the possibility of the city of Milaca relaxing or amending existing ordinances that relate to the consumption of alcohol in various locations, such as parks and certain public locations near businesses.

City leaders also discussed if it would be possible to open up city property for local business use.

“We as a council can come up with a plan to make this work for the restaurants in our community with some guidelines,” said Council Member Cory Pedersen during a May 11 meeting.

He added: “We will have to take a look at ordinances associated with liquor licenses for some businesses so they can fully take care of patrons.”

Pedersen asked if council members were willing to help local businesses by trying to find a temporary solution until they could return to full operation.

Initial Legal Update

City Attorney Damien Toven said during the May 11 meeting it would be possible to amend liquor licenses to help businesses.

Another idea Toven mentioned was using city property to enable businesses to expand their service areas to generate more revenue as a means of offsetting the impact of COVID-19 social distancing.

“Every single liquor license the city issues is based upon the authority given by the state legislature,” Toven added. “We have to make sure that what the city wants to do is something that’s already in the statutory framework or is part of the changes or suspension of rules since the COVID-19 health crisis happened.”

Toven said to the best of his knowledge, businesses were complying with Walz’s executive order and restricting transactions to drive-through and curbside transactions.

“They are all complying with social distancing. I’m not aware of any cities that have made the decision to explicitly ignore the executive order,” Toven added. “I know [other] business organizations have asked cities to pass resolutions supportive of local business, asking the governor to eliminate or lessen COVID-19 restrictions.”

Second City Meeting

During the May 11 meeting, City Manager Tammy Pfaff said everyone on the council was agreement that the city needed to find a solution, and work quickly.

“We need to work through the angles for these businesses, whether or not they take it upon themselves to defy the governor’s executive order,” Pfaff said.

The meeting agenda for Friday, May 15, included review of a letter to Walz written by Mayor Pete Pedersen and follow-up discussion of guidance provided by the League of Minnesota Cities and the Minnesota Alcohol and Gambling Enforcement Division.

Pedersen’s letter to Walz addressed an executive order that’s keeping bars, restaurants, and salons closed.

The letter to the governor was dated May 15.

“The city of Milaca recognizes the seriousness of the COVID-19 pandemic and efforts made by federal, state, county and local governments to protect public health and slow the rate of transmission,” Pedersen wrote. “Small businesses, bars, restaurants, salons and countless individuals have been affected by the drastic economic slowdown and stay-at-home orders. On behalf of the city council of Milaca, we strongly encourage you to allow these businesses to resume safe operations, as soon as possible, following the CDC guidelines, just as big box stores and other declared essential sectors have for the last two months.”

Order Gets Review

City leaders’ next agenda item was a review of Walz’s May 13 executive order, which encourages Minnesotans to stay close to home but allows gatherings of friends and family of 10 people or less.

That order became effective Monday, May 18.

Social, civic, community, faith-based, leisure, or religious gatherings are still prohibited from meeting in groups over 10 people.

Retail stores, malls, and other main street businesses can reopen if they have a safety plan developed and operate at no more than 50% occupancy.

Walz further directed all restaurants, bars, salons, and gyms remain closed; he added public presentation of a plan and state guidance on how to safely reopen those businesses was scheduled no later than today (Wednesday, May 20).

Council members also reviewed an email from the St. Paul-based League of Minnesota Cities developed by Research Manager Amber Eisenschenk.

The LMC is urging cities to exercise restraint against adoption of resolutions or other actions which may expose a city and its officials to civil and criminal liability.

A city does not have the authority to change a state law or be less restrictive than state law unless the law specifically allows, Eisenschenk wrote, adding local governmental units are “creatures of the state” and are subject to state law.

“The U.S. Constitution is silent on local government,” Eisenschenk continued. “Control of local government is not one of the enumerated federal powers.”

Key Legal Concerns

Regarding ramifications for not enforcing the governor’s executive order, there is some possibility a city could expose itself to damage claims if there is a wave of illness or deaths in the community, Eisenschenk stated in her advisory email.

Minnesota Attorney General Keith Ellison has said he will enforce executive orders if necessary, but the state has not provided specific insights on how it will enforce the order if a local government refuses, she wrote.

According to Eisenschenk, city action refusing to enforce the governor’s order may give local businesses the idea they are free to open without risk of penalty, which is not necessarily the case.

“Business owners and employees who act in violation of the order could still face criminal charges or penalties,” she wrote.

Enforcement Question

Council Member Cory Pedersen asked for clarification about enforcement of non-complaint businesses. Police Chief Quinn Rasmussen fielded that question.

“Any complaints that we get, we are going to document,” Rasmussen said. “We have our own discretion, and can use a case-by-case scenario. There are going to be cases where there are more than minor deviations from the executive order.”

Rassmussen said he would document to educate, then ask for compliance. For example, he said on a first complaint, local law enforcement would not be showing up to make arrests or remove people. Hopefully, he said, people would comply.

Additional Discussion

“This information is what we are going to have to base a lot of our action on today,” Pedersen said, referring to the council’s consideration of a resolution acknowledging support for local businesses.

Eisenschenk’s email addressed that point, stating, “This is a permissible action for council to consider doing if they believe that is what is best for their community.”

During discussion, City Manager Tammy Pfaff explained Walz’s latest executive order calls for a phased plan to reopen restaurants, bars, and salons.

Pfaff urged local business owners to watch Walz’s website this week for additional information and any particular plans that would be put in place.

“If you don’t know where to go for information, the Minnesota Department of Health has great resources, and the Minnesota Department of Employment and Economic Development (DEED) Safe Work website,” Pfaff said, adding that the city of Milaca has added several COVID-19 informational links to its website.

Pedersen then addressed city-specific actions for helping local restaurants.

Pfaff explained that under the governor’s current executive order, customers who visit local restaurants for takeout food are not allowed to consume on premises.
Johnson said customers have been consuming their takeout meals on-site in parking lots with “great regularity” at local establishments.

“They go back to their cars and sit and eat it,” he said. “If you are 10 minutes from town and you drive home, your food is cold when you get home, especially if you have French Fries.”

Parking Lots Possible?

Pedersen asked why it wasn’t possible for businesses to use their parking lots or get help from the city using its parking lots regarding expanded food-only service.

Pedersen said the city needed clarification from the Minnesota Department of Health regarding that issue, since the city could not find a good description or explanation within the copy of Walz’s executive order.

Pedersen replied it was his theory once food leaves the front door, it’s takeout.

The state would have no control where he ate as long he didn’t eat within a licensed establishment.

Pedersen asked City Attorney Damien Toven for clarification.

Toven concurred with Pedersen’s assessment. “I think you are correct, Mr. Mayor. Once food is purchased and the customer has exited the property, the business owner really can’t control where they customer goes. Quite frankly, I don’t know if we should be getting into a situation in declaring what businesses can or can’t do. The executive order from Gov. Walz kind of speaks for itself.”

Toven added that restaurants with concerns should contact state health officials.

“This is mostly about education and requesting compliance,” Toven stated. “I would think that the underlying rational behind people not going to a restaurant, buying the food and sitting in the parking lot and eating their food is predicated on the original stay at home order, where unnecessary travel was prohibited.”

Other Legal Aspects

Toven said he didn’t want the council to enter into a legal situation where the city was pro-actively telling businesses they could or not do something with service.

Pedersen said it was his view the council and the city needed to do everything possible to help local businesses survive.

He said the city could let businesses use tables that had to be removed from city parks to increase their social distancing.

“Letting them use those tables in their lots isn’t breaking anything in the law or the executive order,” Pedersen contended.

Toven said that discussion would bring into play different aspects and concerns regarding city liability and licensing.

Council Member Dave Dillan said that type of city assistance would not generate enough sales for local restaurants. “I’m all for it if we have the tables, but I don’t know if that’s the thing that’s really going to help them.”

More Table Talking

Pedersen said he had contacted one local business that was using its existing tables but wanted more.

“Some of those places [locally] are small enough where they don’t have the room inside,” Pedersen said. “When they finally start opening up [and have to use social distancing], they don’t have the space to adequately serve anybody coming in.”

Pfaff addressed the issue of a local establishment using a city-owned parking lot to serve its customers food and liquor outside.

She mentioned Jiggers by name.

“Any establishment that wanted to do that would have to have $1 million general liability limits on its insurance and have $1 million on its liquor liability,” she said. “If they were to use a city-owned parking lot to serve customers food, they would have to have that $1 million limit and list the city as an additional insured.”

City Consequences?

Pfaff also said the city would need a written contract with indemnity clause from Jiggers. “There would have to be endorsement of the parking lot location.”

And, if any local businesses wanted to add patios to increase available outdoor seating, Pfaff said that would require changes in city-approved liquor licensing.

Pedersen replied: “That would be a minor thing and would not entail all the things that you went through with insurance. When it goes to 50% and a business isn’t able to keep the social distancing, it would be nice for them to be able to extend.”

Dillan said the city’s hands were tied with what it could do before the June 1 date.

Johnson said it was important for the city to support legislators in their efforts.

He referenced a Senate bill that had passed earlier in the day (Friday, May 15), that would reassert a fair balance of governing power between the state’s legislative branch and the executive branch during future states of emergency.

“Thus far, it’s just been the governor unilaterally deciding what, and when, and for how long [with orders],” Johnson said. “Maybe that will create a change.”

Council Concerns

Pedersen said another executive order could be issued if COVID-19 totals change. He mentioned current MDH case and death totals that had been reported Friday.

“How many of us sitting here today might have the virus and not know it?” Pedersen asked. “That’s why we have to take all of these precautions. If it’s requested, I would like to be able to move city tables out into the parking lots.”

Council members directed city staff to check with local businesses regarding needs or preference for using city-owned picnic tables for seating.

Johnson made a motion to that effect, with Dillan seconding. That motion passed on a 5-0 vote.

Toven reiterated the council should not take any action regarding suggestions to local businesses.

Support Resolution

Pedersen then asked council members to approve a resolution declaring Milaca a business-friendly community.

The same resolution asked Walz to allow for the safe reopening of Minnesota businesses to alleviate financial hardship and loss.

The resolution stated Milaca’s non-critical businesses were capable of following guidelines handed down by the Minnesota Department of Health and the CDC.

“The city council of Milaca respectfully requests our non-critical businesses be allowed to reopen as soon as possible,” the resolution stated. “We are concerned some of our businesses may no longer be viable after May 31.”

That resolution passed unanimously with minor changes.

Cory Pedersen suggested identifying the governor’s executive order as the event causing hardship.

Johnson suggested more urgency in language in one of the proposed ordinance’s initial paragraphs, and use of the word “immediately” instead of the words “as soon as possible” regarding a timeline for businesses reopening,

Pedersen asked if a revised city resolution could include such changes. Toven replied the resolution under consideration expressed the city’s position and views and was not a binding document when it came to local businesses reopening.

“This is a resolution and not an ordinance,” Pedersen added. The amendments by Cory Pedersen and Johnson were approved. The amended resolution passed 5-0.

Council Member Lindsee Larsen suggested the city send Pedersen’s letter to Walz electronically, since the topic matter was time-sensitive in nature.

“We want things to happen as soon as possible,” Larsen said.

Pfaff said the letter could be sent by priority mail, as well as fax and email, once signed by Pedersen.

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