My client, the Pitkin County Restaurant Alliance, has asked a judge to review Pitkin County’s recent ban on indoor dining at local restaurants. The Alliance is challenging only the Eighth Amended Notice of Public Health Order, which singles out restaurants for closure of indoor dining while leaving other industries untouched. The Alliance is not challenging the underlying order or the prior seven amendments. The Alliance wants sensible COVID-19 regulations, based on science, aimed at preventing and reducing transmission, detecting cases early and of course stopping the virus.
COVID-19 requires serious curtailments of what was considered normal in pre-pandemic life — nobody has to tell restaurant workers that. The Alliance, like everyone, wants to beat COVID-19 as soon as possible. The question this request for judicial review asks is whether the previous limitation of 25% indoor capacity — 75% lower than normal — should continue. We contend that, yes, Pitkin County got it right when it set restaurant limits at 25% capacity in level “orange plus plus.” Where the Alliance differs with the county officials is regarding the Jan. 11 decision to prohibit any indoor dining.
Closing restaurants won’t decrease the incidence rate. To the contrary, the incidence rate might in fact go up without restaurants’ having indoor dining because it forces people into other spaces that the county admits it cannot regulate. Unlike restaurants, private spaces are not monitored, cleaned, disinfected or commercially ventilated. You don’t need to have your temperature checked or health screened before entering. There is no one on-site to enforce social distancing or mask wearing. There are no restrictions on capacity or size of parties gathering. There are no hours for last call or closing or any time limits at all. The host is not at risk of losing a liquor license or business license for failing to comply with health regulations. Those other sites — hotel rooms, condos, apartments, employee housing complexes, private houses, etc. — don’t have to follow the same protocols as restaurants do.
The county admits that hospitalization rates are “comfortable.” The county further admits that, under state regulations, the county should be in orange — not even orange plus plus, and certainly not red. Gov. Jared Polis moved all red counties to orange on Jan. 4, just one week before the county approved the latest health order.
The state has not ordered Pitkin County to go to red; in fact, the state’s own public health director agreed with Gov. Polis’ moving all red counties to orange and recognized as a “fact” that the red-level restrictions create “economic hardship” and “poorer health outcomes.” A Pitkin County commissioner and alternate on the board of health warned of the unintended consequences of the new order, including harm to “the health and well-being of laid-off restaurant workers and increased stress that could manifest itself in drug and alcohol use and domestic violence.”
A former mayor of Aspen and longtime Pitkin County commissioner wrote recently that those “informal gatherings” and “private parties” are likely the culprit. That accords with Chicago Mayor Lori Lightfoot’s position that closing down restaurants is bad for citizens, not just economically but also for public health as well. She said there is an “increase in private gatherings where COVID-19 mitigation protocols are not being followed.” Lightfoot said restaurants are highly regulated, receive regular inspections and have gone “above and beyond to put in mitigation controls inside of restaurants. They are going to be one of the safer places.”
Restaurants don’t want special treatment — but neither do they want to be treated unfairly or feel singled out. The county has banned all indoor dining but has chosen to allow lodging to stay at 100% capacity; the single largest outbreak recorded in Pitkin County is classified as a lodging outbreak. The county epidemiologist admits he cannot account for a single transmission between a restaurant staff member and a restaurant guest. Not one. The only way to fix a problem in lodging is to focus regulations on that industry, by cracking down on those events and stepping up enforcement instead of shuttering restaurants that employ 1,500 people countywide.
We made a Colorado Open Records Act request for information to support the county’s position. The county responded: “We don’t have data for that,” or “we don’t track cases that way” or “we cannot confirm with any certainty” where a case originated. We conclude, necessarily, that that means the county’s decision to ban all indoor dining is not based on science. Rather, it’s based on nothing more than a hunch, a hope, a guess. That can’t be the way public health decisions are made, especially when one industry bears most of the brunt of that decision.
That said, the Alliance bears no ill will toward any county employee or official. They are doing the best they can and trying to act in good faith. We simply disagree with a decision they made. And we’re not the only ones. I do not know of a single restaurant in Pitkin County that is in favor of this new ban on indoor dining. More than 3,300 people signed a petition objecting to the ban, with more than 1,000 people calling into the health board meeting on the issue. Even some members of the board of health had serious reservations about the ban. And the mayors of Snowmass Village and Aspen voiced their criticism, as have others.
This is a contentious issue, but everyone is united in finding the best solution.
Chris Bryan is an attorney at the Aspen law firm of Garfield & Hecht, P.C. and represents the Pitkin County Restaurant Alliance.
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