Attorneys for CJ’s Diner have filed a motion to dismiss a lawsuit against the restaurant for opening to indoor dining when it was prohibited because of the COVID-19 pandemic, arguing public health orders are unconstitutional.
After a dramatic spike in COVID-19 cases, La Plata County on Nov. 20 entered the “Level Red” public health order, which limits restaurants to offering only takeout, delivery and outdoor dining.
CJ’s Diner owner Jerry Martinez, however, stayed open to indoor dining, saying his restaurant and staff members are not able to financially survive another shutdown to in-person dining.
On Dec. 1, San Juan Basin Public Health issued Martinez a cease-and-desist order, which he ignored. He then continued to keep the diner open to indoor dining after a District Court judge ordered law enforcement to close it.
Martinez, on Dec. 7, decided to stop offering indoor dining. But he vowed to push back against SJBPH’s lawsuit, arguing the public health orders issued by Gov. Jared Polis and the state are unconstitutional.
Martinez is represented by two lawyers: Bayfield attorney Marian Tone and Randy Corporon, a Denver-area lawyer who is a tea party activist and serves on the Colorado Republican Party committee.
Corporon did not return calls for comment. His website says he represents “clients who are fighting for business and family survival in the era of COVID-19.” He also represents the Bandimere Speedway in a case in Jefferson County after several thousand people gathered to protest COVID-19 regulations.
In the motion to dismiss, CJ’s Diner’s attorneys argue public health orders from Polis, as well as the actions of the Colorado Department of Public Health and Environment and SJBPH, violate constitutional rights.
The attorneys wrote the regulations violate people’s rights to “freely associate with other people,” to “conduct lawful business” and to “be freed from threats of criminal or civil punishment for exercising these fundamental rights.”
“It is noteworthy SJBPH has made no effort to connect the conduct of (CJ’s Diner) to any evidence of any kind that anyone actually has been harmed by (CJ’s Diner’s) conduct,” the motion to dismiss says.
In the past, SJBPH has noted the significant surge of COVID-19 cases in La Plata County, saying that eating inside comes with a huge risk of spreading the virus, as customers take off their masks to eat and drink, typically with people from other households.
Michael Goldman, a Durango attorney representing SJBPH, said, “We feel confident that the constitutionality of the governor’s order will be upheld.”
While there has been pushback to COVID-19 regulations over the last nine months, the question of whether it’s constitutional to close restaurants to indoor dining has yet to be settled in the courts, Goldman said.
“Not to this extent,” Goldman said of the legal battle between SJBPH and CJ’s Diner.
SJBPH has until Jan. 8 to file a response to the motion to dismiss.
When contacted Tuesday morning, Martinez said of the motion to dismiss: “We just feel like it’s constitutionally right.” He said CJ’s Diner is still closed to in-person dining.
“We’re just like every other restaurant now,” he said. “But we’ll see.”
Martinez said business has been OK, and people have been supportive.
“But it’s definitely not sit-down dining,” he said. “You can’t survive off that (just takeout and delivery).”
La Plata County has yet to meet the metrics to downgrade into the Level Orange public health order, which would allow indoor dining at a limited capacity, but health officials say cases are slowing and the county could reach Level Orange in a few weeks.