{"id":49732,"date":"2020-12-22T11:25:56","date_gmt":"2020-12-22T18:25:56","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/cjs-diner-wants-lawsuit-thrown-out-says-regulations-are-unconstitutional\/"},"modified":"2020-12-22T18:25:56","modified_gmt":"2020-12-22T18:25:56","slug":"cjs-diner-wants-lawsuit-thrown-out-says-regulations-are-unconstitutional","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/cjs-diner-wants-lawsuit-thrown-out-says-regulations-are-unconstitutional\/","title":{"rendered":"CJ\u2019s Diner wants lawsuit thrown out, says regulations are unconstitutional"},"content":{"rendered":"\n

\"Attorneys
Attorneys for CJ\u2019s Diner filed a motion to dismiss a lawsuit against the restaurant for remaining open to indoor dining despite public health orders. The attorneys argue public health orders banning indoor dining violate constitutional rights. CJ\u2019s Diner owner Jerry Martinez says of the motion to dismiss: \u201cWe just feel like it\u2019s constitutionally right.\u201d<\/span>Jerry McBride\/Durango Herald file<\/span><\/figcaption><\/figure>\n<\/p>

Attorneys for CJ\u2019s 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.<\/p>\n

After a dramatic spike in COVID-19 cases, La Plata County on Nov. 20 entered the \u201cLevel Red\u201d public health order, which limits restaurants to offering only takeout, delivery and outdoor dining.<\/p>\n

CJ\u2019s 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.<\/p>\n

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.<\/p>\n

Martinez, on Dec. 7, decided to stop offering indoor dining<\/a>. But he vowed to push back against SJBPH\u2019s lawsuit, arguing the public health orders issued by Gov. Jared Polis and the state are unconstitutional.<\/p>\n

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.<\/p>\n

Corporon did not return calls for comment. His website says he represents \u201cclients who are fighting for business and family survival in the era of COVID-19.\u201d He also represents the Bandimere Speedway in a case in Jefferson County after several thousand people gathered to protest COVID-19 regulations.<\/p>\n

In the motion to dismiss, CJ\u2019s Diner\u2019s 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.<\/p>\n

The attorneys wrote the regulations violate people\u2019s rights to \u201cfreely associate with other people,\u201d to \u201cconduct lawful business\u201d and to \u201cbe freed from threats of criminal or civil punishment for exercising these fundamental rights.\u201d<\/p>\n

\u201cIt is noteworthy SJBPH has made no effort to connect the conduct of (CJ\u2019s Diner) to any evidence of any kind that anyone actually has been harmed by (CJ\u2019s Diner\u2019s) conduct,\u201d the motion to dismiss says.<\/p>\n

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.<\/p>\n

Michael Goldman, a Durango attorney representing SJBPH, said, \u201cWe feel confident that the constitutionality of the governor\u2019s order will be upheld.\u201d<\/p>\n

While there has been pushback to COVID-19 regulations over the last nine months, the question of whether it\u2019s constitutional to close restaurants to indoor dining has yet to be settled in the courts, Goldman said.<\/p>\n

\u201cNot to this extent,\u201d Goldman said of the legal battle between SJBPH and CJ\u2019s Diner.<\/p>\n

SJBPH has until Jan. 8 to file a response to the motion to dismiss.<\/p>\n

When contacted Tuesday morning, Martinez said of the motion to dismiss: \u201cWe just feel like it\u2019s constitutionally right.\u201d He said CJ\u2019s Diner is still closed to in-person dining.<\/p>\n

\u201cWe\u2019re just like every other restaurant now,\u201d he said. \u201cBut we\u2019ll see.\u201d<\/p>\n

Martinez said business has been OK, and people have been supportive.<\/p>\n

\u201cBut it\u2019s definitely not sit-down dining,\u201d he said. \u201cYou can\u2019t survive off that (just takeout and delivery).\u201d<\/p>\n

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<\/a>.<\/p>\n

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

Restaurant defied public health orders by offering indoor dining<\/p>\n","protected":false},"author":1,"featured_media":49733,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[1615,685,133,13,28,668,450,686],"naviga_topic":[],"class_list":["post-49732","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-constitution","tag-coronavirus-covid-19","tag-courts","tag-frontpage-lead","tag-headlines","tag-public-health","tag-restaurant-and-catering","tag-san-juan-basin-health-department"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/49732","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=49732"}],"version-history":[{"count":0,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/49732\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/49733"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=49732"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=49732"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=49732"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=49732"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}