News5 Investigates has obtained evidence revealing the El Paso County Public Health Department misled the public.
In May, the department said it was moving forward with a cease and desist order against a Calhan restaurant that was openly defying Gov. Jared Polis' executive orders related to public health during the coronavirus pandemic.
Not only was that cease and desist letter never sent, but El Paso County Health kept that information hidden from the public.
The discovery only came when Chief Investigative Reporter Eric Ross filed an open records request after communication with the Health Department went silent.
BACKGROUND:
Last month, Karen's Kafe and Stephanie's Bar and Grill made headlines after they announced they were no longer going to follow Polis' COVID-19 health orders, which temporarily banned in-person dining services at restaurants throughout Colorado.
"You come in the first time and you're a guest," owner Karen Starr told News5 in an interview last month. "The second time you come in you're part of our family. The community wants us open. The bills don't stop because the governor says close."
Starr believed Polis' orders were unconstitutional. She said people should have the right to choose whether they want to eat inside restaurants.
"Every order that I cook is with love," she said. "It's not about who I can make sick. It's not about that. It's about cooking with love and showing people if you want to be in here, you can."
TIMELINE OF EVENTS:
May 6, 2020: Karen's Kafe and Stephanie's Bar and Grill along with Western Omelette 3 opens to dine-in customers
El Paso County Health contacts both restaurants and alerts them that they are not in compliance with public health orders.
Western Omelette 3 reportedly stopped serving dine-in customers that day after receiving a call from the health department.
Karen's Kafe remained opened.
May 7, 2020: After the health department asked Karen's Kafe for voluntary compliance in shutting down its dine-in services, Karen's Kafe refused.
"I wanted to let you know that Public Health is moving forward with a Cease and Desist order," El Paso County Public Health Information Officer Michelle Hewitt told News5.
El Paso County Health then went silent on its enforcement action.
A follow up request for an updated statement went unanswered.
May 13, 2020: After Karen's Kafe openly continued defying COVID-19 health orders for more than a week, News5 submitted an open records request asking for the cease and desist letter the health department said it was moving forward with sending back on May 7.
May 18, 2020: A county spokesperson requested a 7-day extension to fulfill our request. This is allowed under the Colorado Open Records Act and is often needed when county agencies receive a large volume of requests they cannot fulfill within a 3-day time period.
May 27, 2020: A county spokesperson requested more time to fulfill our request. Under the law, no further extension is required. However, News5 is committed to maintaining strong working relationship with our government offices and allowed this extension to take place. At the end of they day, it was important to get the public information we requested. The county also promised to waive fees associated with the request.
June 3, 2020: News5 received a response to our open records request which revealed the health department did not send a cease and desist notice it initially indicated it was working on for Karen's Kafe and Stephanie's Bar and Grill.
News 5 then requested to sit down and talk on-camera with Public Health Director Susan Wheelan to better understand what happened.
Michelle Hewitt, the public health information officer for the department declined to allow Wheelan or any of the other environmental health specialists familiar with this situation to interview with KOAA 5.
INCONSISTENT ACTION TAKEN BY EL PASO COUNTY HEALTH:
News5 Investigates obtained a copy of the health department's "Guidelines for Enforcement of Public Health Orders" and found inconsistent enforcement with following their own action plan.
After a complaint is received and the health department is made aware of a violation, the health department would investigate to determine whether a violation exists.
If a violation exists, a "notice of determination" may be issued. In "people" terms, this means the health department will attempt to further educate the business about health policies, procedures and guidelines and ask for voluntary compliance.
If a business still refuses to comply with public health orders, the next step is a cease and desist order.
The final course of action could include a criminal summons.
News 5 uncovered the only cease and desist order issued by El Paso County Health was sent to American Furniture Warehouse.
News 5 had hoped the health department would be able to give us a better understanding of why they moved forward with a cease and desist order against a large furniture warehouse but not a small restaurant with dine-in customers.
To-date, the health department has been unwilling to sit down and answer questions on-camera.
In full transparency, we should disclose that the Health Department originally agreed to help us coordinate an interview on Friday, June 5th.
On Monday, June 8, Hewitt sent KOAA 5 an email declining to proceed forward with setting up an interview after consulting with the County Attorney's Office.
TRANSPARENCY REPORT AND QUESTIONS:
KOAA-TV News 5 believes strongly in transparency and accountability. In advance of this story being published, we gave El Paso County Health multiple opportunities to hear their side of the story and answer questions on-camera. Chief Investigative Reporter Eric Ross also had a phone conversation with Hewitt to go over topics we wished to cover.
Q: You stated that the health department hid information related to not sending that cease and desist letter. Can you clarify how that information was "hidden"?
A: On May 7 after News 5 was told the health department was moving forward with a cease and desist order, we had a duty to follow up and verify when that order was issued. On May 13, News 5 submitted an open records request asking for that document. That request was emailed directly to Michelle Hewitt, the public health information officer for the county. The county records custodian was also copied on the request. At the time the request was submitted, El Paso County Health had multiple opportunities to disclose that no cease and desist letter was issued. On May 23, the Colorado Department of Public Health and Environment granted El Paso County's restaurant variance request---which allows in-person dining services on a restricted basis. After the variance was approved, Karen's Kafe was no longer violating any policies. At that point, the health department would have no further authority or power to issue a cease and desist order, yet they still did not disclose that information to us until this month.
Q: Why did you proceed forward with a follow up story on this topic, given the fact that Karen's Kafe is now in compliance with health orders?
A: News 5 felt it was important to correct misinformation about the El Paso County Health Department proceeding forward with a cease and desist order. We wanted to correct this information as soon as possible. However, we first wanted to make sure we gave the health department ample time to sit down and talk with us on-camera. At first we were making progress and decided not to "break" the story earlier as we awaited an opportunity for an interview.
Q: How did the health department decline your request for an interview?
A: On the morning of June 8, the spokesperson emailed Chief Investigative Reporter Eric Ross after communicating with the County Attorney's Office. We were advised that the County gave us the information we requested under the open records act and no interview would be granted.
Q: Can I view a copy of the records request you sent?
A: Absolutely. You can view that request here. You can view the responsive documents here. To review the only cease and desist letter issued, we've attached that here.
Q: If the health department is willing to grant an interview at a later date, will you update this story?
A: Yes. We advised the health department that we'd still like the opportunity to schedule an interview.