Judge denies Aspen restaurant group’s request to stop Red-level restrictions

Indoor dining will end starting Sunday in Pitkin County after injunction denied

People enjoy the outdoor dining space at White House Tavern on Friday, Jan. 15, 2021. (Kelsey Brunner/The Aspen Times)

A judge denied an Aspen-area restaurant group’s eleventh-hour attempt to suspend a public health order that takes effect Sunday prohibiting indoor dining in Aspen, Snowmass Village and the rest of Pitkin County.

Ninth Judicial District Judge Anne Norrdin’s ruling late Friday afternoon was a setback for the newly formed Pitkin County Restaurant Alliance, a nonprofit that filed a complaint and motion Thursday to stop the order’s implementation through a court-ordered temporary restraining order.

Restaurants have until 10 p.m. Saturday to serve their last meals indoors — that is until case counts go down and the board of heath downgrades orders to Orange levels or below.

“We’re disappointed,” alliance attorney Chris Bryan said. “This means all restaurants in Pitkin County are going to have to come to a grinding halt.”

The alliance argued Monday’s decision by the board of health to close indoor dining would cripple the local restaurant industry and put more than 1,500 people out of work. As well, the alliance said the board made its decision without conclusive evidence that closing restaurants to indoor dining would help stem the spread of COVID-19 cases locally.

Norrdin’s ruling noted courts are typically reluctant to usurp government orders without hearing from the defendants, who in this case are Pitkin County, the board of health and interim public health director Jordan Sabella.

“The court declines to act … without first hearing from the Defendants, to intervene in the manner sought in an area fraught with medical and scientific uncertainties and where Pitkin County officials appear to be shaping their response to changing facts on the ground,” the ruling said.

Indoor dining was the major change made Monday in the newest public health order, as most Pitkin County businesses and services — with the exception of restaurants — have been operating under Red-level restrictions since Dec. 21.

Outdoor dining, takeout and delivery at restaurants still will be available, though there will be an 8 p.m. last call and tables can only have people from the same household.

Norrdin’s decision does not put an end to the alliance’s legal challenge to the county’s newest health order. The defendants still must formally answer its lawsuit that seeks to lift the Red order through a permanent injunction. The suit also seeks judicial review of the health board’s order and a declaratory judgment that the county cannot enforce the order.

“The Court understands and recognizes the difficulty and hardship created by the pandemic, which has threatened and taken lives and livelihoods,” the judge’s decision said. “However, the Court does not find the sought ex parte intervention in public health decision-making without hearing from representatives of public health officials to be an appropriate use of its authority under the circumstances.”

Bryan issued a statement on behalf of the alliance, which said: “The alliance thanks Judge Norrdin for her expedited attention to this important matter. Although the alliance is disappointed the court denied its request for a temporary restraining order delaying implementation of the new public health order until a formal hearing could be scheduled, the alliance appreciates Judge Norrdin’s order requiring the defendants to respond timely to its pleadings and further requiring a preliminary injunction hearing to be set so the Alliance’s claims may be heard. The Alliance remains confident the new public health order will be invalidated due to its numerous underlying faults and looks forward to its day in court.”

On Tuesday, the day after the board of health’s decision to go Red, the Pitkin County Alliance filed articles of incorporation for a nonprofit corporation with the Colorado secretary of state. Bryan said the group consists of “over two dozen” restaurants. The alliance’s complaint does not identify its member restaurants because “we don’t want anybody to be retaliated against,” Bryan said.

Among the restaurants not in the group include Jimmy’s An American Bar and Grill, whose co-owner has been one of the most vocal operators opposed to health orders going into the Red phase.

That co-owner, Jimmy Yeager, issued a statement Friday about its decision not to litigate.

“We, Jimmy’s Restaurant, made the decision to not officially join the efforts of the restaurant alliance in asking for a judicial review despite our fervent moral support for the action and our profound disappointment in the decision by the Board of Health. In the past 10 months we have worked hard to assist the county in their decisions by providing perspective and the ‘how to’ for restaurants to provide a safe dining experience. We have earned a seat at the table and a place in the conversation. Should we have been a plaintiff, it would have jeopardized our ability to continue in this role. We will be moving forward and requesting time at the next meeting to have a robust conversation about their decision and what needs to happen next. We have acted only in good faith and expect to be treated with the same mutual respect.”

County Manager Jon Peacock said Friday the alliance is well within its rights to ask for a public policy to go through judicial review.

“I can tell you this is certainly not personal from the county and the public health perspective,” he said. “And I hope the folks on the other side of the lawsuit don’t feel that way either.”

The county also has said it plans to participate in the state’s 5 Star program, which would allow participating businesses to move down a code level. The program cannot take effect until the county’s incidence rate declines for 14 days and lands below 700, the positivity rate is below 10% and less than 90% of hospital beds are in use. The county’s incidence rate, the state’s largest, has been in the 3,000 range for the past two weeks.

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