{"id":49314,"date":"2021-01-13T00:09:13","date_gmt":"2021-01-13T07:09:13","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/durango-restaurant-owners-file-lawsuit-against-polis-health-departments\/"},"modified":"2026-03-31T03:46:43","modified_gmt":"2026-03-31T09:46:43","slug":"durango-restaurant-owners-file-lawsuit-against-polis-health-departments","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/durango-restaurant-owners-file-lawsuit-against-polis-health-departments\/","title":{"rendered":"Durango restaurant owners file lawsuit against Polis, health departments"},"content":{"rendered":"\n

\"Jerry
Jerry Martinez, co-owner of CJ\u2019s Diner, is suing Gov. Jared Polis, the Colorado Department of Public Health and Environment and San Juan Basin Public Health. He claims public health orders, Polis\u2019 executive orders and the state\u2019s Disaster Emergency Act all infringe on his constitutional rights.<\/span>Jerry McBride\/Durango Herald file<\/span><\/figcaption><\/figure>\n<\/p>

Owners of CJ\u2019s Diner, Jerry and Carrie Martinez, are suing Gov. Jared Polis and state and local health departments, claiming state law, executive orders and public health orders that restrict restaurant operations during the COVID-19 pandemic violate their constitutional rights.<\/p>\n

The lawsuit filed in La Plata County District Court seeks to keep the state\u2019s disaster law, executive orders and public health orders restricting restaurant operations during the COVID-19 pandemic from being enforced in restaurants across the state because they violate both the U.S. and the state constitutions.<\/p>\n

\u201cThe essence of this complaint is that the supreme executive by executive order is purportedly making new laws and implementing new public policies which wholly usurp the power of the legislative department to make the laws, a power which has been delegated by the people through their Colorado Constitution exclusively to the legislative department,\u201d the complaint says.<\/p>\n

The lawsuit names Polis; the Colorado Department of Public Health and Environment; San Juan Basin Public Health; and the directors of two health agencies, Jill Hunsaker Ryan, with CDPHE, and Liane Jollon, executive director of SJBPH, as defendants.<\/p>\n

Jerry Martinez said getting judicial relief from the numerous public health restrictions that have been imposed on restaurants since March and then continuously revised since then is likely the best option to allow CJ\u2019s Diner to return to economic viability.<\/p>\n

\u201cIt looks like this, the judicial side, to say that authorities have overreached, is the only way for us to be able to go back to work at a volume that makes sense, \u201d Martinez said. \u201cWe\u2019re probably down probably about 50%. The reality of it is: Anybody who knows anything about a business knows it cannot operate on 25%. It just doesn\u2019t work. We feel like even if we\u2019re running at 100% we\u2019re hoping we\u2019ll be able to make it in Durango.\u201d<\/p>\n

CJ\u2019s Diner and the Martinezes are also battling in court over CJ\u2019s refusal to close its dining room for a few days in November when La Plata County was under the state\u2019s Level Red dial framework that banned all indoor dining in restaurants.<\/p>\n

A preliminary injunction was issued to force CJ\u2019s to close during the Level Red restrictions, which CJ\u2019s complied with, but CJ\u2019s has asked District Court Judge William Herringer to overturn the injunction, saying the preliminary injunction is unconstitutional.<\/p>\n

Overturning the injunction would be a moot point in terms of the current restaurant operation, which like other restaurants in Durango is operating at 25% indoor capacity with takeout and delivery. But it would have statewide ramifications if Herringer sides with CJ\u2019s argument that the injunction was unconstitutional.<\/p>\n

CJ\u2019s attorneys are pursuing the same argument of unconstitutionality as it relates to the state\u2019s Disaster Emergency Act, Polis\u2019 executive orders and state and local health department orders based on the state law.<\/p>\n

Marian Tone, one of CJ\u2019s attorneys, said: \u201cWe\u2019re seeking relief on behalf of CJ\u2019s Diner and Mr. and Mrs. Martinez, but we believe that the declaratory relief and injunctive relief needs to be applied to all the other affected people within Colorado. So what we\u2019re seeking here is relief that will be applied to assist all similarly situated parties in the state.<\/p>\n

\u201cThe (Disaster Emergency Act) unconstitutionally delegates legislative authority to the governor. In addition, the governor and his administration have unconstitutionally spring-boarded from the act to usurping the legislative authority. It\u2019s unconstitutional both as it is written and as it is applied,\u201d Tone said.<\/p>\n

Neither state law nor executive or public health orders can set aside constitutionally protected actions, specifically the freedom to associate, which has been violated by requirements restaurants must follow during the COVID-19 pandemic, she said.<\/p>\n

Michael Goldman, attorney for SJBPH, said claims in the lawsuit that public health orders related to the COVID-19 pandemic are unconstitutional should be denied.<\/p>\n

\u201cWe believe that the ability of the state and local governments \u2013 the state health department, the local health department \u2013 are all well within their authority in protecting the public health by enacting certain regulations to do just that,\u201d he said.<\/p>\n

Goldman said case law has recognized the state\u2019s authority to regulate public health.<\/p>\n

In court filings in the case brought by SJBPH against CJ\u2019s for remaining open during the Level Red alert, Goldman wrote, \u201cOther courts including the United States Supreme Court have recognized a state\u2019s authority to regulate public health and the deference that should be given to public health and elected officials on matters such as COVID-19.\u201d<\/p>\n

CJ\u2019s civil lawsuit contends the extended course of the pandemic has given Polis four opportunities to constitutionally deal with the pandemic, but the governor has not taken any of them. Polis could have:<\/p>\n

Sought a bill during the regular session of the Colorado General Assembly to deal with the pandemic.<\/em>Sought a bill during the special session.<\/em>Directed CDPHE to adopt rules to deal with the pandemic following the normal rule-making procedures outlined in the State Administrative Procedures Act.<\/em>Directed CDPHE to adopt emergency rules to deal with the pandemic again following established state rule-making procedures.<\/em>Conor Cahill, press secretary for Polis, issued a brief statement about CJ\u2019s civil litigation: \u201cHealth guidance is science-based and designed to balance saving lives with allowing as much commercial activity as possible in as safe a way as possible. We recognize that being able to support yourself economically is a public health issue too.\u201d<\/p>\n

Representing not only CJ\u2019s but all restaurants that have been harmed by COVID-19 restrictions is an important part of the lawsuit, Martinez said.<\/p>\n

\u201cI feel like we\u2019re not just representing us,\u201d he said. \u201cWe represent a majority of the restaurants in Durango and the state.\u201d<\/p>\n

parmijo@durangoherald.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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