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Health officials turn up heat on Durango yogurt shop

Top That faces possible penalties for offering discounts to non-mask wearing customers
Top That Frozen Yogurt on Main Avenue in downtown Durango may face penalties after allegedly offering discounts to customers who entered the store without wearing a face covering.

Top That Frozen Yogurt in downtown Durango faces possible enforcement actions after allegedly offering a discount to customers who came into the store without wearing a face covering.

“This one is a little bit different than the usual complaint,” said Brian Devine with San Juan Basin Public Health.

Earlier this week, Top That allegedly posted to Facebook it would offer a 10% discount to anyone who came in and said “Happy Columbus Day,” an apparent pushback to the Indigenous Peoples Day movement.

The post went onto say: “And as always 10% off for no masks!! Merica!!”

In an attempt to slow the spread of COVID-19, face coverings are required by state law in indoor spaces where social distancing cannot be maintained.

Not long after, a flood of complaints came through SJBPH’s portal for reporting violations of public health orders. As of Thursday morning, 76 complaints had been filed against Top That, 58 of those since Monday.

Complaints also included numerous photos of staff members and customers not wearing masks inside the store.

Store owner Ryan Bartholomew did not respond to requests for comment. As of Thursday, it appeared Top That had taken down its entire Facebook page.

SJBPH consulted Thursday morning with a local enforcement group formed to meet about public health order violations. The group consists of public health organizations, local law enforcement and licensing municipalities.

An employee at Top That Frozen Yogurt in downtown Durango works behind the counter without a face covering, apparently in violation of state public health orders.

SJBPH has also requested assistance from the state Attorney General’s Office and the Colorado Department of Public Health and Environment to discuss possible enforcement actions on the yogurt shop.

“This is more serious than violating PHO (public health orders) through ignorance or lack of managerial control,” San Juan Basin Public Health wrote in a statement to The Durango Herald. “And SJBPH is looking at all legal options available to stop Top That from willfully creating a risk to public health.”

Devine said the health department receives complaints about businesses not following public health orders on a daily basis, but in most cases, they are for minor offenses, like someone not wearing a face covering in a grocery store.

Those situations can usually be resolved by talking with store owners and coming up with ways to resolve the issue, and for the most part, businesses are trying to be compliant with public health orders, Devine said.

A sign at Top That Frozen Yogurt in downtown Durango says, “your mask is as worthless as Dean Brookie,” referring to the Durango mayor.
A crowd of people inside Top That Frozen Yogurt in downtown Durango, many without face coverings.

It’s far more rare that a business knowingly and purposefully violates and continues to violate health orders. Devine estimated there are about a half dozen instances of businesses taking that course since the pandemic started in March.

SJBPH declined to release the names of each business knowingly violating health orders. As of Thursday, no business has been issued a citation or had a license revoked for health order violations, the health department said.

But in those situations, SJBPH will meet with the local enforcement group to discuss the best course of action.

One of the more public battles involves Farmers Fresh Market in Ignacio, which does not require customers or staff members to wear masks. SJBPH has consulted with the state Attorney General’s Office for assistance on next steps.

“We want people in the outlying community to have an opportunity to shop safely,” said Liane Jollon, executive director of San Juan Basin Public Health.

Farmers Fresh Market manager Amos Lee said he allows his staff members and customers to make their own decision about whether to wear a face covering and it shouldn’t be up to businesses to enforce the mandate.

“We’ve supported everyone to make their own decisions from the beginning, and we’re going to continue to do that,” he said.

Lee said many people are divided about whether masks are effective at slowing the spread of the virus, and that it is about a 50-50 split on staff members and customers who come into the store wearing a face covering.

“It’s horrible and it’s causing a tremendous amount of contentiousness,” he said. “All this division within the community, it’s just not a good thing at all.”

Studies have shown people are 20 times more at risk of catching COVID-19 inside rather than outdoors, Jollon said, and when it comes to the greatest risk of spread at businesses, it is among employees.

“These businesses are creating the greatest risk to their own workforce,” Jollon said.

And when COVID-19 spreads among staff members, those people then take the virus to their homes, resulting in further infection and community transmission, and prolonging the pandemic, Jollon said.

Face coverings are believed to help slow the spread of the virus, though wearing masks has become a politicized issue across the country.

Tim Walsworth, executive director of the Durango Business Improvement District, said a state mandate requiring face coverings has helped businesses relay the message to customers, but it puts staff members in a tricky spot.

“It puts businesses in a funky spot where they basically would have to turn away a customer,” he said. “In certain situations, it can become very confrontational when either side wants to make a point.”

Indeed, there have been flare ups over mask-wearing in Durango.

In August, a 23-year-old Durango woman allegedly punched a man in the face after the woman took issue with several people not wearing face coverings at O’Reilly Auto Parts.

The man punched in the face was identified as Bartholomew, owner of Top That.

The frozen yogurt shop has seemingly transformed into a political lightning rod in downtown Durango after putting up Republican political signs and flags for a variety of candidates, including Trump-Pence and Lauren Boebert, who is running for the 3rd Congressional District.

Earlier this month, Durango School District 9-R students were seen shouting and making vulgar gestures to people inside the store during a rally that was supposed to be about climate change.

And just this week, the Indigenous Peoples Day march in downtown Durango drew counterprotesters outside the yogurt shop, some of whom wore Trump paraphernalia and chanted “U-S-A.”.

In a Facebook post that has since been taken down, Top That wrote that the counterprotesters were not affiliated with or supported by the store.

“We do not condone the usage of hate speech, such as name calling and/or vulgar gestures from the people that were outside of the shop,” the post said.


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