The content and layout of FAQs on this web page were entirely revised on July 23, 2021.
(Updated Dec. 2, 2021)
Meetings & council business
Q1. Can our city begin to meet remotely under 13D.021 now that the community transmission of COVID-19 is reportedly high in Minnesota even though the state is not in a state of emergency? (Updated Dec. 2, 2021)
Q2. Do the council members or residents need to wear masks during our meetings at city hall? (Updated Dec. 2, 2021)
Declaring an emergency
Managing normal city business
Stay Safe MN
Meetings & council business
Q1. Can our city begin to meet remotely under 13D.021 now that the community transmission of COVID-19 is reportedly high in Minnesota even though the state is not in a state of emergency?
A1. Maybe. The threshold question in determining whether the public body may meet remotely under 13D.021 is whether it is not practical or prudent under a health pandemic. If the presiding officer, chief legal counsel, or chief administrative officer for the affected governing body determines that an in-person meeting or a meeting conducted under section 13D.02 is not practical or prudent because of a health pandemic, and the other requirements of 13D.021 are met, meetings may be conducted by telephone or interactive technology. Your city attorney is best equipped to advise the city as to whether their specific city has met statutory requirements. At least a quorum of the city council must be attending remotely for this exception to apply (see advisory opinion 21-003 and Data Practices Office webinar, Data Practices Potpourri, December 2021).
A2. Cities may still require masks be worn in public places through ordinance or resolution, depending on the city’s specific structure. Gov. Walz rescinded Executive Order 20-81, ending the statewide mask mandate on May 14, 2021.
Q3. Can our city hold public hearings remotely if the public body is meeting remotely under 13D.021, even though the state is not in a state of emergency?
A3. If your city has determined that in-person meetings are not practical or prudent because of the health pandemic, you would likely have your public hearings that way, too. There is not a specific statute that addresses this. Because of the nature of public hearings, it will be important to work with your city attorney in determining ways that the public can still provide input during the meeting because not everyone has access to online meetings. Accepting written testimony, allowing the public to enter city hall and testify using city equipment, or allowing someone to call into the meeting may be options to consider.
A4. The medical exception allowance is only available when a state of emergency has been declared by the governor, and can be used up to 60 days after the state of emergency has been lifted. In combination with the already existing military exception, the medical exception is limited to three times in a calendar year. Information on the medical exception is available in the League information memo, Meetings of City Councils.
Q5. Does the city have the option of meeting in person and requiring remote attendance by the public?
A5. Not likely. The commissioner of Administration issued an opinion stating that a public body did not comply with the Open Meeting Law when a quorum of the public body held an in-person meeting limiting the public to remote attendance. If the city council meets in person, the public must have the option of also attending in person.
Q6. If the city council begins to meet remotely, is the city required to allow remote public comment?
A6. Maybe. Minnesota Statutes, section 13D.021, subdivision 5 now requires a public body to offer a public comment period remotely if “the public body’s practice is to offer a public comment period at in-person meetings.”
Q7. If it is determined it is not practical nor prudent to meet in person due to a health pandemic, does the city need to provide free remote monitoring for the public?
A7. Yes. During the 2021 legislative session, Minnesota Statutes, section 13D.021, subdivision 3 was updated requiring city councils to provide monitoring from a remote location if the public body is conducting a meeting through telephone or interactive technology.
Declaring an emergency
Q8. Can the mayor declare a public health emergency? Or does that have to come from the governor or public health director?
A8. Maybe. The city attorney is best situated to assist the city in drafting language for declaring a public health emergency under this scenario.
The mayor is responsible for declaring a local emergency. This declaration allows the city to use the parts of its disaster plan that are appropriate to the situation. The declaration may also authorize aid and assistance under those plans. If the mayor does declare a local emergency, it must be publicized and published. A local emergency lasting longer than three days requires the consent of the council. Because the emergency declaration is local, the emergency management functions are limited to the territorial boundaries of your city, unless other law becomes applicable. Examples of other laws include existing mutual aid agreements or cooperation required if the governor were to declare a state of emergency. Minnesota Statutes 12.29 and 12.25 address local emergencies.
A9. The city can pass a resolution rescinding the local emergency. Your city attorney is best equipped to advise the city in making changes to create a resolution meeting the city’s specific needs. Some cities have developed emergency declarations with an automatic termination.
Managing normal city business
A10. No. Beginning July 1, businesses and places of public accommodation are no longer required to have and implement a written COVID-19 Preparedness Plan.
Q11. Is there any guidance available for first responders, building inspectors, etc. on the use of masks when entering homes or other buildings where folks might be ill?
A12. The Minnesota Department of Health encourages cities in this circumstance to reach out to your Regional Heath Care Preparedness Coordinator.
Q13. Can the city financially support local businesses that have been forced to close or are struggling due to the COVID-19 outbreak?
A13. There is no authority in state law for a city to financially support businesses. In addition, it is likely that there is no public purpose for such an expenditure. The Office of the State Auditor consistently emphasizes that there must be legal authority and a public purpose for expenditures of public funds. Charter cities should refer to their charter to see if such authority exists. Cities may be able to provide assistance through an economic development authority, but should consult legal counsel for an analysis of potential avenues of assistance.
A14. Yes! The MDH has a variety of COVID-19 informational materials in Spanish, Hmong, Russian, and many other languages.
Q15. Should the city require participants in recreation activities to sign a waiver and release of liability?
A15. The decision to use waivers is a policy question for each city. Some cities may take the approach that if the city’s negligence causes an injury (and the city is not immune from liability), the city should be held responsible. In that case, a waiver would not be appropriate. Other cities may take the position that the city should do everything possible to protect the city from liability, including the use of waivers. LMCIT does not have a formal position to encourage or discourage the use of waivers.
A16. Most waivers are likely broad enough to protect the city from COVID-19 claims. However, in light of the current coronavirus pandemic, it would be a good idea to include specific COVID-19 language. Such language should include waiving claims related to COVID-19 as well as assuming the risk of exposure to COVID-19.
A17. Yes. The League has drafted a sample park and recreation waiver with COVID-19 language. The city should consult with its attorney for guidance related to specific situations.
Q18. Are masks required to be worn indoors now? Does the city need to provide masks to employees or residents entering their facilities?
A18. On May 14, Gov. Walz rescinded Executive Order 20-81 lifting the statewide mask mandate. Cities may impose their own citywide mask mandate or require individuals to wear masks in public buildings.
A19. Maybe. The city will want to review the language of the mask mandate it passed. Some cities passed a mask mandate ending when either a statewide mask mandate began or when the statewide mask mandate ended. By rescinding Executive Order 20-81, the governor has not preempted city mask mandates. Cities have the option to continue their citywide mask mandate. If the city would like to end its mask mandate, the city attorney is best situated to advise the city on how to do so in the particular circumstance.
Stay Safe MN
Q20. Now that the Peacetime Emergency has ended are there any restrictions on places of public accommodation?
A20. Indoor and outdoor places of public accommodation may be open all capacity restrictions, party size limitations, and distancing requirements are lifted.
A21. The CDC says that the COVID-19 virus has not been detected in drinking water. Conventional water treatment methods of filtration and disinfection should remove the virus.
Q22. I heard something about a new app for notifying you if you have been exposed to COVID-19. Is it publicly available?
A22. Yes, the state launched the COVIDaware MN app, available for both Apple and Android devices. Your phone and the phones around you work anonymously in the background, using Bluetooth Low Energy (BLE) technology to exchange privacy-protected keys provided to someone if they report testing positive for COVID-19. If you come into contact with someone who has reported testing positive for COVID-19, the app will notify you. The app does not access your personal information and does not require you to provide any personal information.
A23. Yes. All capacity limits and distancing requirements — both indoors and outdoors — have come to an end.
Q24. Do cities need to change their regulations to allow the expansion of bar and restaurant services outdoors?
A24. Cities may need to make changes to current regulations to assist businesses requesting to have additional outdoor seating. The outdoor expansion requests may include areas like sidewalks, some parking spaces, or undeveloped outdoor areas adjacent to their buildings. Cities are taking different approaches to how they will allow for this. Some have changed ordinances that require the business to apply for a permit for this temporary increase in size. Others have approved resolutions. The benefit of having a permit process is the option to make this an administrative process that does not require council approval. It is important to work with the city attorney in developing this process.
Some important considerations for cities:
- The retailer must provide the city with proof that their liquor liability insurance covers alcohol sales in any expanded outdoor spaces which, under Minnesota law, must be “compact and contiguous” to the main structure. Proof of liquor liability insurance must also be provided for onsite catered events.
- The city will need to approve a map of expanded service areas. Note that guidance from the Minnesota Department of Employment and Economic Development (DEED) limits the number of guests bars and restaurants may have and requires reservations.
- Cities may want to consider noise and traffic concerns.
Local zoning and building codes would apply to any physical expansions such as new or modified patios and decks. This may include the type of materials for fencing required to have a compact and continuous new space.
A25. Minnesota Statutes, section 340A.410, subdivision 7 requires retail alcoholic beverage licensed premises to be compact and contiguous. Minnesota Rules 7515.0430, subpart 2 defines the types of additions license holders can make as part of their licensed premises to include physically connected attachments to the main structure such as patios, decks, or pavilions. The space would have to be owned and/or leased and be a part of the business. The city would have to approve any compact and contiguous additions to the licensed premises and include such additions in the license files and on documentation defining the licensed premises.
Sidewalk seating or other types of city-controlled public space that would normally not be used for expanded seating could be used at the city’s discretion as it would for sidewalk table seating under normal circumstances. The city would have to allow the license holder use of the space and include it as retail licensed premises patio space.
Use of a parking lot would have to constitute a compact and contiguous additional patio space.
A26. If the parking lot or other expansion space is not contiguous to the original licensed premises, another option would be for the business to apply and qualify for an alcohol catering permit to enable alcohol incidental to food service for events (see Minnesota Statutes, section 340A.404, subdivision 12). An event is not daily bar service, but could be weekend parties or music events, etc.
Q27. Do bars and restaurants need to get additional licenses, fees, or approvals to sell food outdoors (if they don’t normally sell outside)?
A27. Sometimes. Additional approvals would likely not be required for additional service stations supporting the outdoor food service of an existing kitchen. It would be a best practice for establishments to share their plans and questions with their Minnesota Department of Health (MDH) inspector or their locally delegated public health agency. MDH has an Additional Food Service fee category that is occasionally applied in addition to the Category 1/2/3 fee for the main kitchen, but they plan to address how to apply that on a case-by-case basis. New construction and remodels would also require plan review. See the Minnesota State and Local Food, Pools, and Lodging Contacts to get contact information for all areas of the state.
Q28. Are bars and restaurants in the Metropolitan Council region that are expanding their premises to allow for outdoor seating subject to additional Sewer Availability Charges (SAC)?
A28. No. Metropolitan Council Environmental Services will not adjust or charge SAC during the order, given that these operations would be within current capacity and within the current statutory guidance. Specifically, there will be no SAC due for restaurants that temporarily set up or expand outdoor seating due to the governor’s order. This is in compliance with the SAC statute because there is no additional capacity demanded on the system given the governor’s order.
Instead, Environmental Services will set up a tracking form for each city, where the city will report to the Council the name, address, and new or expanded outdoor square footage for each restaurant that sets up temporary facilities. These can be reported as the applications come in, weekly or at least monthly. Once the restriction is lifted, Environmental Services staff will send the list back to the cities and ask them to confirm that each restaurant is closing their outdoor facility or making it permanent. If permanent, the normal SAC determination process will be followed.
Q29. Can restaurants with an on-sale liquor license continue to sell limited quantities of alcohol with takeout food orders?
A29. No. MN DPS Alcohol and Gambling Enforcement views the law allowing alcohol to be sold with takeout food to be in effect until all of the governor’s executive orders limiting the affected businesses either expire or are rescinded or there is legislative action taken to amend or sunset the provision of statute.
Q30. If the city closes streets to allow bars and restaurants to expand their outdoor space, is there liability on the city? Would the League of Minnesota Cities Insurance Trust cover claims?
A30. The city would likely be covered by its Trust coverage for any claims against the city related to closing the streets. There would not be Trust coverage for any restaurants or bars.
Q31. If a bar or restaurant wants to use public property to expand, can the city agree to let it use the city’s property temporarily?
A31. Yes. Ideally, if a bar or restaurant wanted to use the city’s right of way or a city parking lot, the city would have a written agreement with the bar that includes the following provisions:
- The bar must have commercial general liability (CGL) insurance of at least $1 million per occurrence.
- The bar must have liquor liability (dram shop) insurance of at least $1 million per occurrence.
- The city must be named as an additional insured on both the CGL and liquor liability insurance.
The bar must agree to defend and indemnify the city for any claims against the city arising from the use of the right of way or parking lot.