A Durango restaurant that refused to close to in-person dining in defiance of a public health order in place to slow the spread of COVID-19 was issued a cease-and-desist order Tuesday.
As the result of a dramatic rise in COVID-19 cases, La Plata County on Nov. 20 moved into the “Level Red” public health order, which limits restaurants to offering only takeout and delivery services.
Jerry Martinez, owner of CJ’s Diner, however, has remained open to indoor dining, saying his restaurant is not able to financially survive another shutdown to in-person dining.
“We’ve done everything they asked us to do,” Martinez told The Durango Herald last week. “And to me, at some point, I’m going to sit here and lay down? I’m done with that. It’s the only way I can stay alive and employed.”
Brian Devine with San Juan Basin Public Health said not only has CJ’s Diner stayed open to indoor dining, the restaurant has also not been requiring social distancing or face coverings, “despite multiple warnings.”
According to the order, CJ’s Diner was notified five times of the public health order in place, including by email, oral warnings and written warnings.
“This choice puts the whole community at risk given what we know about indoor maskless transmission,” Devine said. “We are resorting to formal enforcement in this case due to the severe risk presented by indoor dining when disease prevalence is this high.”
Devine said the cease-and-desist order calls for CJ’s Diner to stop offering indoor dining. Devine said violating a public health order is a misdemeanor charge, and if the restaurant doesn’t comply, additional enforcement could be taken, though he declined to say what those specific actions could be.
“Additional formal enforcement action will follow if CJ’s Diner remains open for indoor dining after being ordered to cease doing so,” Devine said.
The cease-and-desist order amounts to a stern warning, putting CJ’s Diner on notice that if it doesn’t follow public health orders, criminal action may occur, said Bobby Duthie, a Durango lawyer who specializes in criminal defense and civil litigation.
It is essentially the first stage in administrative hearings, he said.
“More than likely, CJ’s is going to have to desist, and if they don’t, there could be a criminal matter,” Duthie said. “My recommendation: Anybody who gets a cease-and-desist order from a state public agency should seek good legal advice.”
Cease-and-desist orders are generally issued by agencies or people that have the authority to enforce statutes, regulations and rules, said Michael Goldman, an attorney in Durango who counsels SJBPH.
In this case, Liane Jollon, as director of the health department, has the authority to administer and enforce public health laws of the state, as well as public health orders, rules and standards of the Colorado Department of Public Health and Environment, he said.
SJBPH, through the La Plata County Sheriff’s Office, issued Tuesday’s order, which essentially is a legal order taken under the authority of the health department to control diseases under state law, Devine said.
When contacted Tuesday morning, Martinez, said he planned to consult a lawyer, but he doesn’t intend to close down indoor dining.
“My goal is to stay open,” Martinez said.
According to the order, Martinez can request an administrative hearing within 30 days where he can plead his case.
Martinez has argued his diner at 810 E. College Drive has complied with every previous public health order issued since the pandemic started in March, to the detriment of his business and his employees.
But now, Martinez said he is fed up and is willing to take a stand against the shut down of in-person dining.
“I feel like if the police came and chained up my business and I got hauled to jail, I’d have half of Durango right in front of my restaurant,” he said. “I just think we have that kind of support.”
Devine, however, said indoor dining is among the most dangerous activities contributing to the spread of COVID-19 because customers remove their masks to eat and drink, allowing the virus to spread to other customers and staff members.
Devine said a sizable portion of transmission in La Plata County is associated with indoor dining, as evidenced by the fact that more than 24 restaurants have had confirmed outbreaks of cases or are under investigation.
The move to Level Red came mid-November during a surge in cases: La Plata County was reporting just 433 positive cases Nov. 1. As of Tuesday, that number had skyrocketed to 1,480 positive cases.
“Compliance with public health orders is critical to improve transmission control,” Devine said. “Most restaurants closed indoor dining on Nov. 20 did so in order to protect their community despite the obvious financial sacrifice.”
Indeed, restaurants have sacrificed since the pandemic started.
Restaurants were shut down to indoor dining March 16, and when they were allowed to reopen more than two months later, it was to limited capacity that undercut profits.
Recently, the Colorado Restaurant Association reported that statewide, an estimated 65% of restaurants could close within the next six months under current conditions and if no aid is received.
Since the pandemic began, several restaurants have closed permanently, at least in part because of COVID-19, such as Eno Cocktail Lounge and Wine Bar, the Palace Restaurant, the Irish Embassy Pub, Kassidy’s Kitchen and Pura Vida.
Martinez previously said a coalition of about 15 local restaurants planned to band together to announce they would continue to stay open for in-person dining, despite the Level Red restrictions.
The group met Monday at the Wild Horse Saloon and declined to allow a Herald reporter to attend. Martinez said Tuesday restaurants are afraid to speak out and take a stand, fearing retribution.
As a result, Martinez said only a handful of restaurants may choose to stay open.
“They’re scared to death,” Martinez said.
In a video posted Tuesday night on Facebook, Amber Morris, owner of the Wild Horse Saloon, said a coalition of business owners have retained an attorney to help fight shutdown orders.
“We are going to go forward, we are tired of being stepped on,” she said in the video. “We are tired of bending over backwards for everybody else in this town, while none of the big-box stores have any problem staying open, because they have the legal team to fight it. Well guess what? Now we do, too.”
Morris went on to say business owners plan to meet at 4:30 p.m. Friday at the Durango & Silverton Narrow Gauge Railroad station in support of each other and to advocate for their rights.
She also said the Wild Horse Saloon will be open Friday and Saturday nights this weekend “and every Friday and Saturday night until they pull me out of here kicking and screaming, because my life matters, and my staff’s lives matter, and all of my customers’ lives matter, too. Business owners’ lives matter.”
David Woodruff, president of the Colorado Restaurant Association’s Durango chapter and general manager of El Moro Spirits and Tavern, said the mentality to fight against public health orders likely changed after Gov. Jared Polis said restaurants would risk losing business licenses and would not be eligible for grants.
“That’s a sign of desperation if you’re willing to forgo your business license just to survive,” he said. “That’s a tough pill to swallow.”
Woodruff said he is advocating for La Plata County to implement something similar to Mesa County’s five-star rating program, a process that allows restaurants to apply for variances to allow indoor dining.
The issue hits home for Woodruff, as El Moro recently made the decision to temporarily stop all operations, including takeout and delivery, which was bringing in only 10% of what normal sales would be for this time of year.
“We’re all desperate right now,” he said.
After an initial, previous conversation with a lawyer, Martinez said he was told he was “going to end up in trouble.”
“Maybe that’d be the only thing to fire everyone up,” he said of sparking other restaurants to stand up against public health orders.
Devine said the cease-and-desist order does not prevent CJ’s Diner from offering takeout and delivery.
“SJBPH hopes that CJ’s will join the rest of the community in keeping their patrons and staff safe by closing for indoor dining until case incidence falls below the Level Red threshold and restaurants are allowed to reopen,” he said.
The cease-and-desist order marks the first enforcement action of any kind to a business in La Plata County refusing to follow a public health order.
For months, local and state agencies have gone back and forth about who should take the lead.
Jollon, executive director of SJBPH, said the other two businesses most visibly refusing to follow the face-covering requirement – Top That Frozen Yogurt in Durango and Farmers Fresh Market in Ignacio – have not received any enforcement actions because the comparative risk of transmission was low.
This article has been updated to clarify that more than 24 restaurants have COVID-19 outbreaks that are confirmed or under investigation. Also, a photo caption incorrectly said San Juan Basin Public Health issued Level Red restrictions. It was the state of Colorado.