The shutdown and stay-at-home orders that helped define the early days of the COVID-19 pandemic may seem like a distant memory, but one vestige of that time lives on in Durango: a lawsuit filed by CJ’s Diner challenging the public health mandates.

The lawsuit filed by CJ’s Diner co-owner Jerry Martinez is awaiting a legal ruling from 6th Judicial District Judge William Herringer after a year of back-and-forth motions. The lawsuit was filed in January against Gov. Jared Polis, Colorado Department of Public Health and Environment, San Juan Basin Public Health and SJBPH Executive Director Liane Jollon.

During the lockdown, when bars, restaurants, gyms and other establishments were ordered to close to help prevent the spread of COVID-19, CJ’s Diner stayed open. The health department issued multiple warnings, but eventually issued a cease-and-desist order, calling for CJ’s Diner to stop offering indoor dining.

The diner also ignored the cease-and-desist order, so a District Court judge ordered law enforcement to close the restaurant to in-person dining by “whatever means necessary.” Martinez opened his restaurant the very next day, while supporters of the eatery blocked entry to law enforcement. Martinez then agreed to stop offering indoor dining.

During the dustup, the health department filed an injunction against the diner. Martinez then filed a lawsuit in response to the injunction, arguing local health departments don’t have the right to shut down businesses in such circumstances.

The case has been pending since August when the health department filed its last reply to CJ’s Diner, said Durango lawyer Michael Goldman, who represents the local health department.

Martinez said the judge’s ruling will either dismiss his case or make a ruling in favor of the diner’s argument – that state and local mandates restricting in-person dining violates the Colorado Constitution.

Martinez said he’s been waiting for a ruling for about 20 weeks, and he figures that if the judge hasn’t thrown the case out so far, “there’s something” substantive to it.

“We’re not suing for money,” he said. “We’re suing because we think we need to set a precedent in our business that says we should be allowed to work and make a living.”

Martinez said the mandates, which are not currently in effect, “are doing everything they can to destroy what we have built our whole life.”

He added that there is talk about COVID-19 killing people, but mandates are killing people as well by restricting the businesses that help people make a living.

Martinez said his retirement is reliant upon CJ’s Diner, which he has owned for 21 years as of next week.

“This is our livelihood and this is what we do for a living,” he said. “It’s all we have. We’re hoping that he (the district court judge) rules in our favor.”

Martinez said it is “crazy” that football games were conducted with 110,000 people in attendance while restaurant owners can’t run their businesses. He said for a time his diner was restricted to just four tables to accommodate customers inside. He usually operates at 15 tables.

“There’s just no way,” he said.

CJ’s Diner is faring better these days, Martinez said. It is back to full capacity with 15 tables.

The lawsuit isn’t strictly meant to defend CJ’s right to operate at full capacity, Martinez said. He also wants to stick up for other struggling local businesses. A small business alliance was formed between other local restaurants and establishments, but CJ’s Diner was the one to ultimately take the torch, Martinez said.

“None of them felt like they wanted to step out in defense of them (each other),” he said.

Martinez said his business has been devalued by the threat of business mandates during the pandemic. He asked who would want to buy a business when state and local governments have so much control.

SJBPH’s injunction was filed in December 2020. Martinez said the judge dismissed the health department’s lawsuit. SJBPH attorney Goldman said the health department voluntarily dropped the case because the diner complied with state and local mandates after the injunction.

“We were able to get the support of the court,” Goldman said. “Having received that support and (with) everything working well, San Juan Basin Public Health voluntarily dismissed that complaint in May of 2021.”

SJBPH filed a motion to dismiss the case brought by CJ’s Diner in June, Goldman said.

Last week, Jefferson County District Court faced a similar situation involving Bandimere Speedway, a raceway near Red Rocks, Goldman said.

“Bandimere also brought a complaint that was very similar to the one brought by CJ’s,” he said. “Motions to dismiss were brought by Jefferson County as well as the state in that instance.”

Goldman said Jefferson County District Court issued a lengthy order granting motions to dismiss Bandimere’s case last week and that SJBPH filed a notice of supplemental authority to alert the 6th District Judicial Court about that order.

The Jefferson County case did not set a precedent, but Goldman believes the order is persuasive.

“We’d love to see a similar ruling,” he said. “But again, this judge is independent from the judge up in Jefferson County, and the judge could rule differently because of whatever reason.”

cburney@durangoherald.com