From Darkness To Light

10 Dec 2020

CJ’s Diner ordered to stop indoor dining by Judge following injunction request

Posted by Victoria Schmitt

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Court action involving CJ’s Diner

On Saturday Dec. 5, SJBPH filed in District court for an order to prevent CJ’s Diner from offering indoor dining. The court issued a temporary order to that effect.  The purpose of a temporary order is to stop an action (indoor dining) for a temporary period of time until the case is heard in court.

CJ's Diner closed temporarily by judge's orderThe case was heard in court today, Weds. Dec. 9 and a Preliminary Injunction was issued.   A Preliminary Injunction means the court orders CJs to stop indoor dining until the court can hear the full merits of each side and render a decision on SJBPH’s efforts to stop indoor dining at CJs.

Focus of Weds Dec. 9 Hearing – SJBHD use of SO and DPD for Enforcement

On Tuesday Dec. 8, CJ’s, represented by Marian Tone, attended a pre-hearing conference with the judge.  In the pre-hearing conference, CJ’s expressed their intent to honor the court’s order to temporarily stop indoor dining while requesting a few changes to specific terms of the order.  The only item SJBPHD did not agree to was with respect to law enforcement. Thus, this item became the subject of the Wednesday Dec. 9 hearing.

Both the temporary order to stop dining and the proposed Preliminary Injunction included:  “An order directing the La Plata County Sheriff or Durango Police Department to use whatever means necessary to secure the premise in the event there is further violation”.  (see attached Motion for Temporary Restraining Order, pg 12).  The Judge amended that language in the 12/4/2020 TRO to  to read “whatever means reasonably necessary”.

CJ's DinerOn Wednesday, CJ’s argued that this language expands the authority held by the Sheriff’s Office and Durango PD and that their authority is already covered by state and local laws so is not appropriate or needed in orders specific to CJs.  The Court agreed.

Health department requests expansion of police powers against CJ’s Diner

In the process of advocating for expansion of police powers via the order and Preliminary Injunction,  SJBHD presented that their current powers to use law enforcement came from Colorado Revised Statute (CRS) 24-33.5-702 which states:

“Nothing in Part 7 (Colorado Disaster Emergency Act) shall be construed to ….  Affect the jurisdiction or responsibilities of police forces, fire-fighting forces, or units of the armed forces of the United States, or of any personnel thereof, when on active duty; except that state, local, and interjurisdictional disaster emergency plans shall place reliance upon the forces available for performance of functions related to disaster emergencies”

My read of this is that in a disaster emergency, SJBPH may enlist law enforcement for assistance. Ultimately, SJBPH would have to demonstrate (even if after the damage has been done) that they were indeed acting in a disaster emergency situation.  Not a sure chance of success.  Thus the reason to attempt to get the Court to order that police step into this role and thus relieve the burden of proof from SJBPH.  The judge did not accept this and removed the part of the order directing law enforcement action.

My understanding is that typical resolution of public health orders are through the courts.

Upcoming court hearings involving Cj’s Diner

The judge asked SJBPH and CJ’s to return to court as soon as possible to present the merits of their positions so that the issue can be resolved. This pose will be updated once a date has been set.

A press release from CJ’s Diner and the court filing are attached as PDF’s below

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