Aspen-area restaurants seek suspension of Pitkin County’s Red level order
Group files complaint in court to stop latest onset of restrictions
Attorneys for a newly formed group of Aspen restaurants raced Thursday to file court papers seeking injunctive relief from a Pitkin County Board of Health order that takes effect Sunday banning indoor dining.
The complaint asks for a court order to suspend or repeal the Red-level order passed by the health board Monday. The organization also filed a motion for a temporary restraining order intended to keep the existing Orange-plus-plus health restrictions in place until judicial review of the county’s Red order is completed.
Current orders limit indoor dining capacity to 25% in Pitkin County and put last call for alcohol at 9:30 p.m. with patrons out the doors by 10. Red-level restrictions will eliminate indoor dining entirely, limit outdoor dining to single households only, with the last call at 8 p.m. Takeout orders also are allowed.
The motion asks that a judge immediately issue the restraining order.
“Immediate disposition is imperative because the Order is scheduled to take effect at 12:01 a.m. on January 17, 2021,” said the motion, which was filed by Chris Bryan and Jason Buckley of the Aspen law firm Garfield & Hecht PC. “If the Order does go into effect, then the Alliance’s members and other Pitkin County restaurants will immediately begin taking steps that will be difficult, if not impossible, to reverse. These steps include laying off employees, disposing of perishable goods, and issuing stop orders to all vendors and suppliers.”
The litigant is the Pitkin County Restaurant Alliance, a collection “of restaurant owners, industry professionals, and concerned citizens,” according to a statement issued to the media. Its expressed purpose is to get the issue before a judge.
“The Order on its face invites the very judicial review the Alliance now seeks, and the Alliance looks forward to having an independent judicial officer review the Order and the process that led to it,” said a statement from the group.
Their motion and complaint accuse the Board of Health and Pitkin County of penalizing the restaurant industry without adequate data or evidence supporting the Red order. The board of health’s decision also runs counter to Gov. Jared Polis decision recently to move counties from Red to Orange because of declining incidence rates, the alliance said.
At the same time the complaint and motion were being filed in Pitkin County District Court, after 5 p.m., governmental leaders and health officials from Aspen and Pitkin County held a virtual community meeting to update the public on the latest efforts to slow the incidence rate. That number has averaged 2,765 cases for every 100,000 people and currently one COVID-19 case for every 45 people in Pitkin County, said Pitkin County epidemiologist Josh Vance.
“I’m asking that all of our community share the burden in this effort to work together and do your individual part,” Mayor Torre said. “That means for residents and businesses as well.”
Pitkin County interim Public Health Director Jordana Sabella — named as a defendant in the complaint along with the county, the public health department and the Board of Health — also noted that those counties Polis moved from Red to Orange already had been closed to indoor dining.
“What we know is that when the other counties had climbing incidence rates, many of them moved to Red-level restrictions,” said Sabella, who along with other speakers made no mention of the litigation. “They were able to curb their incidence rates back down with it.”
Arguments made in Thursday’s filings, however, said local restaurants have adhered to local health orders and the county cannot provide evidence showing they contributed to the COVID-19 spread to the point they must be all but closed.
The community also has shown support for the alliance, with “3,358 individuals” signing a petition Jan. 7 to 11 in support of its cause, court filings said.
The suit also said Bryan made a request under the Colorado Open Records Act in December seeking Pitkin County statistics relating to the number of patrons and employees of restaurants who contracted the virus in an indoor restaurant setting. The county did not track such data, the suit said.
“The Defendants have not conducted any review of the potential impact or effectiveness of the Order as it relates to Pitkin County restaurants, or, if they have, they have not disclosed or articulated any such study to the public,” the pleadings said. “The Defendants have not provided any publicly available materials that show a scientific basis for complete closure of in-person indoor dining, implementing an 8:00 p.m. ‘last call’ or banning take-out sales after 10:00 p.m., or indicate that the Defendants have undertaken a careful study of the potential harm or impact of the Order. “
Earlier Thursday morning, County Manager Jon Peacock said he had heard that the suit was coming.
“I get it,” he said. “These folks are really concerned about their businesses. I know they’re feeling singled out … (but) this was not decided arbitrarily.”
The courts are available to restaurant owners as part of the public health order process, and that is their right to use them, he said.
Aspen Times reporter Jason Auslander contributed to this report.