Rocking R Bar defies local health board

**Edited on Tuesday, Feb. 2 at 4:48pm for accuracy issues. All quotes from Katherine Dayton are from a Bozeman community listserv email that was forwarded to the Exponent. The Exponent did not conduct an interview with Dayton.**

When the Gallatin County Board of Health changed the required closing time of bars and restaurants from 12:30 a.m. to 10 p.m on Nov. 6, 2020, owner Mike Hope of the downtown Bozeman staple, Rocking R Bar, refused to comply.

On Nov. 25, 2020, just three weeks after the health directive was enacted, the county requested a temporary restraining order against Rocking R Bar to force the business to close by 10 p.m. Bozeman police had been checking on bars to make sure that businesses were complying with the capacity and closing time restrictions, and Rocking R Bar was the only bar not following the order.

Gallatin County Attorney Marty Lambert explained, “The investigative efforts here have not just been focused on the Rocking R Bar. They’ve checked a number of bars every night,” Lambert told the Bozeman Chronicle. “...the Rocking R is the only one not closing at 10 p.m.”

Following the county’s action against the bar, what began as a simple case took a serious turn after the restraining order request.

In late November, protestors began gathering outside of Gallatin County Health Officer Matt Kelley’s home in Bozeman. The protests ultimately lasted for weeks and were led by Roger Roots, a Libertarian who unsuccessfully ran for State Auditor last fall, and John Lamb, also a Libertarian who unsuccessfully ran for the state senate. Bozeman Police eventually monitored the protests as Katherine Dayton, a neighbor of Kelley’s, said the signs protestors held included, “more aggressive things about tyranny and Matt being a tyrant.” Protestors also held signs that read “we refuse to be your experiment” and “keep your laws off my face.”

Kelley’s home was boarded up once the protests began, and Dayton shared in an email to a Bozeman community listserv that she believed protests outside Kelley’s home, in a secluded neighborhood, were unnecessary. “If they wanted to just make a free speech protest, they could do it in front of the courthouse, instead of in a neighborhood where children are now being shuffled out of backdoors,” Dayton said.

To counteract the protests against Kelley, neighbors staked signs in their yards and down the street reading, “thank you, Matt!” and also held a rally in support of health officials during the first week of December.

When the first court order was requested by the county, Rocking R Bar was allowed to continue operating until further action was taken by the courts. The initial restraining order request was denied by a judge, so the county took the case to court and scheduled hearings that occurred in mid-December, heard by Judge Rienne McElya.

Protests became less frequent following the hearings on Tuesday, Dec. 15, and Wednesday, Dec. 16. Following statements and testimony from Lambert and Rocking R Bar’s Mike Hope, Judge McElya ruled in favor of the county—forcing the bar to follow the health order and close by 10 p.m. In the hearing, the county called upon four witnesses, including Health Officer Matt Kelley, MSU associate professor of microbiology and immunology, Dr. Raina Plowright, health board member Dr. Seth Walk and state medical officer Greg Holzman.

The Rocking R Bar defense argued that the 10 p.m. shutdown time, “sends many people from a regulated, controlled environment into local house parties where these protections and health practices are not maintained and have been a source of spreading,” said local investor and rancher David Loseff. Despite these statements, the preliminary injunction granted by Judge McElya will stay in effect until March 1.

In the same community listserv email that was forwarded to the Exponent, Dayton explained that many Bozeman businesses and organizations have suffered through the pandemic, yet the welfare of the Bozeman community is far more important than the profits of her business. In the email Dayton said, “For my business and many others, nightly patronage is far less important to our survival than getting an overarching grip with respect to COVID-19.” She went on, “If doctors and nurses are crying mercy, isn’t that worth something?”

Kelley’s neighbors called upon Hope and his supporters to calm the protests and take into consideration the entire Bozeman community. “I would hope that you [David Loseff] and other friends or associates of Mike would take a stand to the protestors and try to reason with them to take a new tact,” Dayton said in the email.

Since the December hearings, the Rocking R Bar was supposed to obey the injunction and close by 10 p.m. However, County Attorney Marty Lambert and the Gallatin City-County Board of Health planned to follow through with the suit and pursue further legal action against the bar. The case took another turn on Thursday, Jan. 10, when newly elected Montana Attorney General Austin Knudsen released a statement ordering Gallatin County to dismiss the case against Hope and his bar. “Our action today is a clear message that we need to safely reopen our economy and will not allow overzealous local governments to hold Montana businesses and their employees hostage,” Knudsen said in a news release.

Lambert and the county quickly responded to the order, as Lambert said, “I don’t dismiss things.” Knudsen, however, believes that, “The ten o’clock closure rule defies common sense. This type of government overreach is devastating to Montana workers and small businesses.”

Though Gov. Gianforte suspended all state level health mandates including business capacities and closure orders, Gallatin County maintains the ability to enforce these rules at the local level. “This disease remains dangerous and the Board will continue to use the best scientific evidence and epidemiological data available to take actions to reduce the spread of the dangerous disease,” Kelley said in a press release.

The Bozeman Board of Health voted seven to one in favor of continuing the suit against Rocking R Bar, which means the injunction against the bar could be extended past March 1, or the two parties can resolve the issue in court.