Restaurant Alliance’s litigation now colored by Orange; group to “analyze” options moving forward
With restaurants entering Orange-level restrictions allowing indoor dining, the attorney for the Pitkin County Restaurant Alliance said Monday the organization has not decided on its next step regarding litigation originally intended to undo the Board of Health’s Red order.
“The Alliance is of course happy to see a return to level Orange and will analyze how this welcome change — which should have happened much sooner — affects the pending litigation,” attorney Chris Bryan said in a statement issued on the alliance’s behalf. “We thank the thousands of community members who support the ongoing efforts of the Pitkin County Restaurant Alliance.”
The alliance, formed Jan. 13 and took legal action Jan. 14, was to have a judge review the Board of Health’s approval of Red-level restrictions.
The nonprofit group, comprised of unidentified restaurants and supporters, also was seeking a preliminary injunction to suspend Red-level restrictions, which were approved Jan. 11 and put a halt to indoor dining beginning Jan. 17.
A preliminary injunction hearing before 9th Judicial District Judge Anne Norrdin is scheduled for 9 a.m. Feb. 19.
That hearing, however, might be a moot point. With the Orange level taking effect, restaurants in Pitkin County can open indoors to patrons under capacity restrictions of 25% or 50 people, whichever is fewer. Alcohol also can be served until 10 p.m., tables must be spaced at least 6 feet apart and parties are capped at 10 people (with no limits on the number of households).
Still, Bryan’s statement said the county’s two weeks in the Red level weren’t why the incidence rate dropped below 700, which was needed for state’s Orange level guidelines to take place. The Board of Health’s decision to put the county under Red restrictions was made independent of state restrictions.
“The Pitkin County incidence rate was trending downward before the Board of Health made its grievous decision on Jan. 11 to shut down indoor dining,” the statement said. “And that trend was plainly evident, even before the shut-down order went into effect on Jan. 17. Fewer tourists, increased access to more reliable testing, availability of vaccines for at-risk populations, and the threat of prosecution after law enforcement finally decided to enforce COVID-19 restrictions on private parties and informal gatherings — those are what caused January’s decreased incidence rate in Pitkin County. Closing restaurants did not cause the incidence rate to go down.”
In a decision issued Jan. 16, Norrdin denied the alliance’s motion for a temporary restraining order to stall the Red order from taking effect the next day.
The judge also Jan. 20 denied the alliance’s motion to expedite the hearing for injunctive relief. Her written decision noted that “courts are generally reluctant to grant equitable relief such as an injunction where the actions complained of are those undertaken by other branches of government.”
In its complaints, the alliance named as defendants Pitkin County, the public health department, the Board of Health and interim Public Health Director Jordana Sabella.
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