Business compliance enforcement effort comes into focus for Aspen, Pitkin County; ‘customer protection’ inspectors first to be hired

A waiter at Mezzaluna refills water for customers dining on the patio in Aspen.
Kelsey Brunner/The Aspen Times

With restaurants now open in Aspen under COVID-19 restrictions, everyone seems to be a compliance officer.

Tables are too close at one spot. Waiters and patrons don’t wear masks at another. A third essentially has become an illegal bar. Umpteen letters to public officials being fired off, some from restauranteurs following the rules and worried those who are not will cause an outbreak and further economic calamity.

“I don’t think these guys get it yet,” Pitkin County Commissioner Greg Poschman said earlier this week of some restaurants in Aspen. “I’m pretty discouraged and I don’t think I’ll be going into these establishments.”

Commissioner Kelly McNicholas Kury called reports of the illegal bar at Scarlett’s “abhorrent” and “unacceptable.”

“This will not be tolerated,” she said.

The problem, however, is that while there are no lack of dime-droppers, there is a distinct lack of actual compliance officers to educate, cajole and, if necessary, force a recalcitrant business to comply with rules meant to prevent the spread of the virus.

“I’d encourage you to hire the consumer protection folks first,” McNicholas Kury said Tuesday at the board’s weekly work session. “People are getting lax.”

The hiring process for those inspectors, as well as a companion effort to investigate and trace cases of COVID-19 in Aspen and Pitkin County, began in earnest just after McNicholas Kury made those statements. That was when commissioners unanimously approved spending $600,000 on the two programs for the rest of the year.

The county is preparing the job descriptions and will likely post them in the next week or so, Pitkin County Manager Jon Peacock said Friday. The two consumer protection positions will be prioritized in the hiring process, he said.

“That’s clearly where we’re feeling the pressure,” Peacock said. “We’re not doing enough of that work right now.”

The Aspen Police Department and Pitkin County Sheriff’s Office have made clear that they do not feel that enforcing public health orders is a law enforcement issue.

Therefore, enforcement of the orders is up to the Pitkin County Public Health Department, which this week responded to a story in the Aspen Daily News about scores of people drinking at Scarlett’s, not social distancing, not wearing facemasks and employees exhibiting lax disinfecting procedures. The department issued restaurant owner Andrew Sandler a cease-and-desist order and notice of violation, said Peacock and McNicholas Kury.

Sandler did not return a phone message Friday seeking comment about the violation.

Enforcement of public health orders is difficult because they are long, complicated and frequently change, Pitkin County Attorney John Ely said Thursday during a county Board of Health meeting. It’s best to give people time to adjust, then follow-up with education efforts that will hopefully correct violations, he said.

However, the rare obstinate person can trigger a full enforcement action, which could include criminal charges or civil action through a court order, Ely said.

“We’ve come close to doing that a few times now,” he said, “but we haven’t done it yet.”

In order to ensure community safety, Pitkin County plans to hire two case investigation supervisors, four contact tracers, an epidemiologist and a data manager for the case investigation program. The effort also will include money for a public information person.

In addition, the county will hire two consumer protection positions that will conduct spot checks at restaurants and other businesses to ensure public health order compliance, Peacock said. The effort will be similar to restaurant inspections, he said. The program also will include an administrative assistant and a liaison to work with businesses on compliances issues.

Together, the two programs will cost $593,000 for the rest of 2020.

Commissioners voted to support the six months of funding, but vowed to readdress the situation at the end of the year before allocating $1.1 million to continue the programs through 2021.

Commissioner Patti Clapper, in particular, questioned whether the number of positions was too many.

“I see the need but I think we’re going a little too high,” she said.

She said she’d support the six months worth of funding before taking stock of it at the end of the year.

Clapper also defended local restaurants, saying she’s dined out twice in the past week and found compliance by restaurant workers to be top-notch.

“It was a great experience,” she said, encouraging Poschman to give restaurants another shot. “There are restaurants in this community doing what we require of them.”

The public will have a chance to comment on the $600,000 allocation for the COVID-19-related programs June 24 when it is scheduled to be formally adopted. The money became available for the programs immediately Tuesday, however, because commissioners approved the money on an emergency basis.

The county is anticipating a $3 million drop in revenue because of the COVID-19 virus, Peacock said. However, officials believe they will be reimbursed over the next couple years by the federal government for some expenses.

Gov. Jared Polis has said Pitkin County will receive $1.5 million of CARES Act money. The county will split that with the city of Aspen and town of Snowmass Village, Peacock said.