GLENWOOD SPRINGS–The Garfield County Board of Commissioners (BOCC) on Wednesday radically revised its resolution passed in response to the Colorado Department of Health and Environment (CDPHE) placing the county under ‘Level Red’ restrictions on the state’s COVID-19 dial.
Last Thursday Complete Colorado reported that the BOCC passed a resolution to shift restaurants, gyms, fitness centers, recreation and noncritical retail into the same critical business category as grocery stores, gas stations and big-box retail stores, thus allowing those businesses to avoid shutting down as demanded by Level Red status.
At that meeting Commissioner Tom Jankovsky expressed shock and disappointment with the state’s action.
“From my perspective, this is discriminatory against this particular business type and the people that work for them. It affects people that are in the middle class, working hard, trying to get through Christmas,” said Jankovsky. “This is a shut-down through the holidays. For me to agree to do that would be immoral.”
According to Yvonne Long, Garfield County Public Health Director, there has been a “significant” increase of 807 new COVID-19 cases over the past two weeks for a total of 3,168 cases and 23 deaths from the virus overall.
“We are definitely seeing the repercussions from the Thanksgiving holidays,” said Long Monday. “When we do our contact tracing and we ask the question if you were at a Thanksgiving gathering, more likely than not, the answer was yes, with family and friends. We can feel pretty confident that there was a lot of transmission through the holidays.”
According to the health department the majority of deaths in the county have occurred in those over age 65.
Commissioners argue that there is no scientific basis for closing down inside dining while allowing churches, big-box stores and grocery stores to remain open.
In a redraft of the resolution enacted effective immediately at a special Wednesday morning meeting of the BOCC, the county says, “No epidemiological evidence justifies the disparate treatment of restaurants as opposed to, for example, big box stores, or of movie theaters or gyms as opposed to grocery stores. Without that evidence, there is no way to reconcile these decisions that effectively put restaurants and gyms alone out of business.”
The resolution also warns businesses that the county’s resolution does not override or prevent actions by the state under Governor Polis’ executive orders and that they accept the risk that the CDPHE or other state agency may take action the county cannot control or interfere with.
Garfield County Attorney Tari Williams told Complete Colorado Tuesday that commissioners are concerned that the Level Red restrictions as applied to the state’s classification of businesses under the CDPHE dial scheme impacts 14th Amendment equal protection rights of business owners.
“In Garfield County, at this time, it does seem to put an undue burden on restaurants and gyms, as opposed to the other various categories,” said Williams. “We are concerned that there may be legitimate equal protection concerns in the way that the level red restrictions could effectively shut some businesses down while allowing others to operate at level orange without change.”
According to CDPHE outbreak data analyzed by Complete Colorado, as of the December 9 report, eight staff members at three restaurants, all sit-down facilities, have been confirmed as having the virus and one staff member was suspected of having it. The first outbreak was resolved as of July 7, and the latest outbreak was resolved as of November 6. There are no active cases involving restaurant staff as of December 9 in Garfield County and there have been zero cases among customers and no deaths associated with restaurants since March.
Statewide, since March, total customer infections in restaurants are 61, and have increased by ten, from 51 to 61, since December 3, as reported in the CDPHE’s outbreak data file.
The new resolution says that according to CDPHE and county COVID-19 dial metrics, Garfield County only exceeds one of the three stated CDPHE metrics for Level Red classification.
“Garfield County’s metrics place its incidence rate at Level Red, its test positivity at Level Orange, and its hospitalizations at Level Yellow,” says the resolution. “As of December 10, 2020, the County’s metrics did not require it to move to Level Red.”
Instead, the BOCC said that the decision whether operate under Level Orange or Level Red restrictions would be up to individual business owners, but those affected by the CDPHE’s action, such as restaurants, that choose to operate under Level Orange restrictions must post signs “in a prominent location at the entrance” to inform customers of their operating level.
The resolution includes warnings to citizens that certain businesses may not be following Level Red standards.
“We’re trying to take care of the citizens as well as businesses,” said BOCC President John Martin. “But again, it’s going to be a determination by each individual if you wish to patronize a store or not. So please, you’re responsible for yourself as well.”