In a letter to Gov. Jared Polis sent Nov. 25, Douglas County commissioners requested that the county be allowed to start a variance program that would keep qualifying restaurants open for indoor dining.
The program commissioners referred to, called the “5-Star Variance Protection Program,” is currently being utilized in Mesa County and allows qualifying restaurants to be open with limited capacity, according to The Daily Sentinel in Grand Junction.
“It is not fair that a restaurant in Mesa County… is allowed to operate while businesses here can’t,” Commissioner Lora Thomas said in a Nov. 24 work session. “That is not right”
In the letter, commissioners said that if the governor did not engage in a conversation with them by Dec. 4, they would implement the program on their own. Commissioners are not in control of whether or not restaurants are allowed to open.
Commissioners also directed the county attorney in the work session to look into whether there was possible legal action that they could take against the state of Colorado for the way level red, the latest level of COVID-19 restrictions handed down from the state, was implemented. The new level prohibits indoor dining.
After county staff informed commissioners of differences between Mesa and Douglas counties’ case numbers, they entered into an executive session during the meeting to discuss the possibility of legal action against the state with their attorney.
Mesa County, which has a population 2 1/2 times smaller than Douglas County’s, had a two-week COVID-19 incidence rate of 1,400 cases per 100,000 people compared to 950 per 100,000 people for Douglas County, as of Nov. 24, according to CDPHE’s data.
“I really appreciate the opportunity to have spoken with counsel in executive session because I think it’s important for this board to ask the county counsel to explore the issue of … whether or not the laws are being inequitably applied to different businesses and different counties,” said Commissioner Abe Laydon.
Jennifer Ludwig, deputy director of Tri-County Health Department, said in the meeting that she had recently learned from the state that no other level red counties would be approved for the variance protection program.
“Only Mesa County will be able to keep this program because they started it when they were in the ‘Protect Our Neighbor’ phase and so they’re letting them pilot this as a level red county to see how it works in level red,” Ludwig said.
In order to qualify, businesses in Mesa County must enact strict rules to prevent the spread of COVID-19, including requiring mask wearing and social distancing, monitoring possible virus symptoms and limiting the number of patrons allowed inside.
In their letter, commissioners mentioned that it was their understanding that Polis is considering the program for the whole state.
Commissioners made comments about their frustration with the situation in the work session with Ludwig.
“If there is an exception granted to a county that has worse and more severe metrics for COVID, then we should be afforded the same opportunity,” Laydon said.
While incidence levels are higher in Mesa County, the two-week positivity rate was about the same on Nov. 25, according to CDPHE data.
Commissioner Roger Partridge asked Ludwig, who also voiced concern about the state’s decision, if Tri-County would also sign onto the letter to the governor, but the health department did not appear on the letter.
Ludwig said Tri-County will continue to speak to the state about their communication issues and how they appear to be favoring certain counties.
“We are just as frustrated,” Ludwig said in the meeting.
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