Aspen restaurant alliance’s case to go before a judge in February

A district judge scheduled Feb. 19 as the hearing date for Pitkin County Restaurant Alliance’s motion seeking injunctive relief to suspend the public health order that bans indoor dining.

Another ruling Judge Anne Norrdin issued Thursday effectively nixed the alliance’s attempt to get an injunction hearing held as early as Friday, which means the Pitkin County Board of Health’s Red-level order will remain in place indefinitely. The county entered the Red phase Sunday following the board’s vote Jan. 11 made out of concern over a rise in an COVID-19 rates that have been the state’s highest and among the 25 highest in America.

The judge’s ruling offered dim prospects for the alliance’s legal challenge to the Board of Health order. Similar to a ruling Norrdin issued Jan.16 denying a motion for a temporary restraining order to stall the Red order from taking effect, the judge noted “courts are generally reluctant to grant equitable relief such as an injunction where the actions complained of are those undertaken by other branches of government.”

Chris Bryan of the Aspen law firm Garfield & Hecht PC, which represents Pitkin County Restaurant Alliance in the litigation, said the Board of Health might want to reconsider its Red order at its next meeting, scheduled Thursday.

“They can voluntarily agree to roll back their objectionable order … and restore indoor dining to 25% capacity, which we think is the right thing to do,” he said. “We maintain that shutting down completely was not supported by the evidence.”

County Manager Jon Peacock said litigation won’t influence how the Board of Health makes its decisions.

“I have confidence in the board of health to do what is in the best interest of the public health for our community,” Peacock said, “and not in the interest of resolving a lawsuit.”

The alliance named as defendants Pitkin County, the public health department, the Board of Health and interim Public Health Director Jordan Sabella.

In a related development in the case Wednesday, the defendants filed their first response to the alliance’s litigation since it was introduced after business hours Jan. 12 in Pitkin County District Court. It wasn’t, however, the kind of answer the alliance wanted.

Instead of answering the alliance’s lawsuit seeking judicial review of the health board’s decision and responding to its motion for preliminary injunction, the defendants instead were contesting the alliance’s motion to expedite the case. That motion was seeking formal responses to the litigation by noon Thursday to give the judge time to review the arguments and decide on the matter of injunctive relief.

In its response, the county said it needed the regular 21-day window to formally answer the complaint and motion for injunctive relief.

“The Alliance’s proposed expedited schedule is also unreasonable in light of defense counsel’s other ongoing obligations,” wrote county attorney Laura Makar in the pleadings. “In addition to their regular caseload, defense counsel is involved in numerous matters involving the pandemic that arise nearly every day. The expedited schedule would be unreasonable even if undersigned counsel was able to work only on this particular case.”

Norrdin agreed.

“The Plaintiff’s Complaint and Motion for Preliminary Injunction no doubt raise issues that may be the proper subject of judicial scrutiny in due course and upon full briefing once the Defendants have had a sufficient opportunity to respond while also managing their response to the pandemic,” the judge’s order said.

The alliance has argued that the Board of Health is holding the restaurant industry to unfair heath restrictions while other business sectors enjoy more flexibility under the Redlevel restrictions.

In addition to a judicial review of the Board of Health’s order, the alliance also is asking the county to provide scientific data and evidence justifying the board’s decision to close indoor dining.

In its pleadings Wednesday, the county said: “As the Court has recognized, wide latitude should be afforded to Public Health in its response to managing this pandemic when the ground constantly shifts beneath its feet and it must weigh seemingly impossible choices based on imperfect data and scientific information.”

The alliance was incorporated as a nonprofit with the Colorado secretary of state Jan. 11.