Garfield County commissioners’ resolution says businesses can open at pre-level red capacities

Garfield County commissioners passed a resolution Wednesday they say allows businesses to operate at levels in place before the state moved the county to level red restrictions last week.

That includes restaurants, which, per the county policy, may resume indoor dining services at 50% capacity, if they choose.

Businesses choosing to follow the county resolution, rather than state public health orders, must post signs provided by Garfield County Public Health stating as such, the resolution specifies. They must also follow the usual COVID-19 public health precautions including wearing masks and social distancing.

The resolution takes effect immediately, commissioners said.

Businesses that decide to follow the county resolution are advised, however, that they aren’t exempt from potential state enforcement of the level-red restrictions. But County Attorney Tari Williams said that’s not likely without the state first consulting with county officials.

Williams said the county’s resolution was revised and broadened from a draft version that would have declared certain sectors, including indoor dining, gyms and fitness centers as “critical” businesses.

That approach didn’t address certain other sectors that would be impacted, such as movie and stage theaters, she said.

Earlier this week, Tyler Kelly, general manager at Brenden 7 Theaters in Rifle, asked if the exemptions could extend to movie theaters.

“The service we provide to the community is invaluable,” Kelly said. As an “indoor event” per the Colorado Department of Public Health and Environment, they would have to close under the red restrictions.

Same is true for the Glenwood Vaudeville Revue stage show. However, after canceling the holiday show and canceling “thousands” of reservations, owner John Goss said he won’t reopen under the county’s modified restrictions.

“The main thing I have to consider is whether it’s safe enough to open right now, and whether my cast will be safe,” Goss said.

Instead, the holiday show has been made available online for viewing, with a suggested $15-per-person donation to a special GoFundMe account, Goss said.

Seeking clarity

“It felt like we were taking a very confusing situation and making it even more confusing,” Williams said of the broader resolution, as opposed to the critical business designation.

Under the commissioners’ resolution, all businesses that would otherwise have to reduce capacity, or close altogether, may now operate at the county’s modified orange level restrictions.

That means restaurants and gyms — as a matter of county policy outlined in the seven-page resolution — can operate at 50% capacity, county commissioners have determined.

The resolution states that Garfield County will enforce restrictions only to the orange level on the Colorado Department of Public Health and Environment’s metrics-based COVID-19 dial, as long as the required signs are posted.

“Enforcement actions may be considered against those businesses not following level red standards that do not post such signage,” according to the resolution.

That gives people the choice whether to patronize a business based on the level at which they are operating, rather than forcing businesses to comply with the tighter restrictions, Commission Chairman John Martin said.

“I do think this is a prudent way to establish local control, and still take precautions,” Martin said. “It’s a matter of individual choice.”

Added County Commissioner Mike Samson, “We as your commissioners are trying to help you as best we can in a tough situation, but please use common sense in business dealings.

We are giving you the most relief we feel like we can at this time.”

Commissioner Tom Jankovsky said the resolution should be viewed as the commissioners’ response to providing business relief during the pandemic restrictions.

“This is probably the biggest financial assistance we can provide to those businesses that want to continue to operate,” he said. “It’s a hand up, not a hand out, and probably the biggest Christmas gift we can give them at this time.”

Any businesses that want to take part in the state’s legislature-approved business assistance program must still adhere to the level red restrictions. That program offers one-time grants of up to $7,000 for qualifying businesses, to be paid in February.

County, state differ on risk level

The commissioners’ resolution takes issue with the state moving Garfield County to level red on the COVID dial, even though case numbers have increased drastically over the past month.

“Of the COVID outbreaks in Garfield County … only 15 cases total originated in restaurants, or 0.5% of total cases,” the resolution states. “Restaurants represent only 20% of the total outbreaks that have been investigated.”

The resolution also notes that, while the current two-week case count and incidence rate place Garfield County at level red (severe risk), the other primary metrics the state looks at, test positivity rate and local hospitalizations, remain at the orange (high risk) and yellow (concerned) levels.

“With minor and possibly temporary modifications to the classification of indoor dining services and the operating capacity limits applied to gyms, the Board of County Commissioners believes it can achieve the goals of level red without placing a disproportionate burden on those businesses and thereby more appropriately tailor the restrictions to a compelling governmental interest,” the resolution states.

“It is the BOCC’s desire to protect as many small businesses as possible from economic ruin while recognizing that its local health care workers, Public Health Department, and related services have been pressured to a critical level by balancing the serious need to contain virus spread with the need to ensure small businesses survive.”

CDPHE Chief of Staff Mara Brosy-Wiwchar maintained in a follow-up interview Wednesday morning that the county’s sector variances allowing 50% capacity no longer exist, and that counties cannot adopt policies that are less strict than the state’s public health orders.

“They can be stricter, but not less strict than the dial,” she said. “With the adoption of the state dial (earlier this fall), site variances are still in place but the sector-wide variances have gone away.”

However, the state is not inclined to take heavy enforcement action against individual businesses without working with the county first, she said.

Brosy-Wiwchar said the state works with local public health departments regarding enforcement in most cases. It is possible in extreme cases of violations, though, that the Department of Revenue could get involved to suspend liquor licenses.

Such actions have occurred in other parts of the state, and would have to follow due process, she said.

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