Attorneys for a group of restaurants mounting a legal challenge to overturn Pitkin County’s new health order have introduced new arguments in an attempt to get the issue before a judge by the end of the week.
Written pleadings filed Monday in district court by the Pitkin County Restaurant Alliance seek a court decision requiring the defendants — the county, the board of health and interim public health director Jordan Sabella — to answer the group’s complaint by Thursday so the matter can advance to a judge as early as Friday.
Ninth Judicial District Judge Anne Norrdin signed an order Monday afternoon giving Pitkin County until noon Wednesday to contest the motion.
The push by the nonprofit alliance comes after Norrdin denied its motion for a temporary restraining order that would have stalled the 12:01 a.m. Sunday rollout of the Red phase, which prohibits restaurants from serving diners indoors.
Since then, restaurants also have been restricted to serving outdoor meals and providing takeout, with closing time at 10 p.m. Last call for alcohol is 8 p.m.
This week’s pleadings argue the Red order will negatively affect not only restaurants’ bottom lines, but it also will have wide-ranging consequences on laid-off employees creating social welfare issues ranging from inability to pay rent to increased anxiety and depression.
“Every day that passes is another day that Pitkin County restaurant workers are without work and that restaurants are unable to operate in an economically viable manner,” said a motion to expedite the case because of its urgency. “Most troublesome is the mass unemployment and the public health crisis that will result.”
Aspen attorneys Chris Bryan and Jason Buckley of Garfield & Hecht filed the pleadings. One seeks approval for an expedited hearing regarding its second motion for preliminary injunction to lift the Red order and put the county in the less restrictive Orange phase, which allows indoor dining at a 25% capacity with last call at 9:30 p.m.
“The Order is the product of Defendants’ desire to be seen as doing something — anything — to curb the two-week incidence rate in Pitkin County despite the mass- unemployment public health crisis that the Order will create and compound,” said the motion for preliminary injunction. “It is not the product of a complete investigation and incontrovertible data that proves a correlation — much less the scientifically required causation — between the incidence rate and indoor dining, the sale of alcohol for on-premises consumption between 8:00 p.m. and 9:30 p.m., or the sale of take-out items after 10:00 p.m.”
In an interview Tuesday, Bryan emphasized the need for what already was expressed in this week’s motions and last week’s lawsuit — the county’s production of clear proof the board of health’s decision was informed by scientific data. The county has not been able to satisfy Bryan’s request for the information, he said.
“We want them (the defendants) to show us what scientific evidence this was based on,” Bryan said.
The Red order is in place for an indefinite period of time, and was adopted by the county after the board of health voted for its approval Jan. 11.
“Delaying the Alliance’s day in court harms untold thousands of people with little (if any) benefit to the public interest; given the mass-unemployment public health crisis that the Order creates, the public interest will be hurt every day the Order is in effect,” said the motion to expedite.
County manager Jon Peacock said Tuesday the defense will be ready to make its case if Norrdin decides to hear it.
“Obviously, we disagree with them,“ Peacock said, ”but we’ll let the judge make that decision.“
For Pitkin County to ease restrictions, it must show a 14-day decline in its incidence rate — the state’s highest — before the county will go back to Orange-level restrictions.
The county also has been regularly cracking The New York Times list of American hot spots that’s updated daily.
On Tuesday morning, Pitkin County was considered the 20th hottest spot in the country due to its rate of 186 cases per 100,000 people, according to the Times’ data. Pitkin County was the sole Colorado county in the top 20 hot spots.
Peacock said he realizes the difficulty the Red phase places on the restaurant industry and its widespread effect on the community’s social welfare. Yet the community must persist, he said.
“I think what we can all do is double-down through this fatigue and slow the spread of the virus so our businesses can get back open, and I really encourage the community to support our local businesses and do what we can — get takeout, get delivery,” he said.
Multiple studies have shown that adults dining at restaurants face increased likelihood of catching the coronavirus. According to a case-control study issued in September by the Centers for Disease Control and Prevention, adults confirmed with COVID-19 were twice as likely than a person without the virus to have dined at a restaurant within 14 days of getting sick.
“In addition to dining at a restaurant, case-patients were more likely to report going to a bar/coffee shop, but only when the analysis was restricted to participants without close contact with persons with known COVID-19 before illness onset,“ the study says. ”Reports of exposures in restaurants have been linked to air circulation. Direction, ventilation, and intensity of airflow might affect virus transmission, even if social distancing measures and mask use are implemented according to current guidance. Masks cannot be effectively worn while eating and drinking, whereas shopping and numerous other indoor activities do not preclude mask use.”
Bryan, however, said the same public officials who have closed indoor dining are overlooking what is happening elsewhere in Pitkin County, where over-sized gatherings continue and health orders are routinely being disregarded by business sectors. At the same time, hotels can operate at guest-capacity levels, commercial airlines continue to fly, and the Aspen airport remains open. Add it up, Bryan said, and the board of health’s decision to close indoor dining didn’t square.
“Travel can increase your chance of spreading and getting COVID-19. Postponing travel and staying home is the best way to protect yourself and others from COVID-19,” according to the CDC.