DENVER – The owners of a Castle Rock restaurant which was closed by the state for defying a standing public health order over Mother’s Day weekend are suing Governor Jared Polis and other state entities, claiming their constitutional rights were violated.
The lawsuit, filed Friday in Douglas County District Court by attorney Randy Corporon on behalf of Jesse and April Arellano, owners of C&C Breakfast & Korean Kitchen in Castle Rock, alleges the governor’s actions to suspend the café’s license indefinitely, which the Colorado Department of Public Health and Environment (CDPHE) has authority to do under the Colorado Food Protection Act, “is unlawful, unprecedented and highly suspect.”
The lawsuit blames Gov. Polis, the State of Colorado, the CDPHE, the Tri-County Health Department (TCHD), and the executive director of the CDPHE, Jill Hunsaker Ryan, of depriving the Arellanos “of their livelihood and ability to operate their business after they simply allowed customers onto their premises to serve food and beverages.”
The complaint goes on to state the aforementioned defendants in the case “arbitrarily and irrationally” selected small businesses like C&C Coffee and Kitchen in Castle Rock “to continue to bear the burden of what can only be deemed a speculative concern” over the risks associated with the novel coronavirus and the disease it causes, COVID-19.
“Certainly, the Plaintiffs opening their restaurant to customers, when so many other businesses are permitted to open their doors to customers, does not constitute an “imminent health threat.””
The restaurant garnered national attention after video taken inside the coffee shop by Colorado Community Media showed booths packed, tables filled and a line snaking out the door – despite a standing public health order from the state in effect through May 26, which prohibits gatherings of no more than ten people, the observation of proper social distancing between people of six feet, mask wearing, and the closure of restaurants for in-person dining.
The lawsuit argues the “numerous and overlapping executive and public health orders” are based on overstated COVID-19 rates that leave the owners of C&C in Castle Rock “in a continual state of limbo and uncertainty,” further arguing that the orders have been renewed or amended several times “with no complete end in sight,” and that “there is a reasonable expectation that the owners of C&C in Castle Rock “will be subject to these or similar orders ad infinitum, or again at the start of the next flu season.”
On Monday, Gov. Polis said restaurants could begin opening for in-person dining starting Wednesday, May 27, though restaurants will have to limit indoor dining to either 50% of their maximum occupancy or 50 people, whichever is fewer.
Since the café’s license was suspended on May 11, the owners of C&C in Castle Rock “have suffered devastating and possibly insurmountable financial hardship,” the lawsuit states, and the owners are now “unable to meet their financial obligations to creditors and are significantly in debt.”
The lawsuit further claims the governor’s executive and public health orders, issued under the Colorado Disaster Emergency Relief Act – which addresses all phases of emergency management – do not give him authorization to “designate and discriminate among various types of citizens and business for selective imposition of emergency orders.”
“Nothing within the enabling legislation of the Act provides that the Governor may issue such comprehensive orders and regulations that discriminate between “critical” and “non-critical” services, dictate strict limitations on how businesses must operate, and/or selectively target certain businesses, or a single business, for enforcement or punishment,” the lawsuit states. “At best, the legislation allows for rules of general applicability over a certain “area” but not the type of intrusive micromanagement over the economy and individual business operations that the Governor seeks to impose.”
The complaint also goes on to state that the defendants in the case violated the due process rights of the owners of C&C in Castle Rock when they shut down their business without a hearing and have placed the owners – as well as other small business owners – in a fundamentally unfair and irrational situation that sets a dangerous precedent “based on unproven scientific allegations by the Governor.”
Further, the lawsuit states that the governor, as well as the state and tri-county health departments, acted with “particular hostility and desire for revenge” when issuing orders to suspend the café’s license indefinitely, which “represent an unconscionable and malicious act designed with the specific intent to punish Plaintiffs rather than abate an “imminent” health hazard.”
The lawsuit further argues that the Equal Protection Clause of the Fourteenth Amendment is being violated because the governor’s public health and executive orders “provide no rational or standard to explain which entities are able to receive the coveted designation of “critical” as opposed to the remaining businesses entities that are considered “non-critical.””
“The practical consequence, as is the case with the Plaintiffs, is that the government’s arbitrary designation between “critical” and “non-critical” entities means the government is picking and choosing who has the opportunity to continue to remain open and potentially operate at a profit and those who will be doomed to bankruptcy and economic ruin.”
The lawsuit against the state, the governor and the CDPHE as well as the TCHD, comes just ten days after Jess Arellano told Denver7 he was consulting with an attorney to explore possible legal action.
Denver7 has reached out to the Governor’s Office, the Colorado Department of Public Health and Environment as well as the Tri-County Health Department for comment on this story.