Whether some counties can give businesses a seal of approval and let them skip tougher state-imposed restrictions landed firmly on the governor’s desk Wednesday, as Larimer and Douglas lawmakers asked the state for permission to join a form of COVID-19 “pre-check” running in Mesa County.
Mesa County, where virus cases have risen sharply in recent weeks and new restrictions followed tighter rules in much of the state, certifies businesses that demonstrate stricter COVID-19 precautions for employees and customers, even advertising for them in local media as “5-star” trusted partners.
Larimer County businesses said they would openly defy new red-level closures that took effect locally on Tuesday, while state lawmakers representing the county sent a letter to Gov. Jared Polis asking for relief and specifically demanding to join Mesa County’s initiative.
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“Letting communities make local decisions will always lead to new and innovative ways of doing business,” said state Sen. Rob Woodward (R-Loveland), one of the signatories. “Mesa County is at the forefront of finding solutions to keep businesses open even though they have moved to level red. We need to protect businesses in Larimer County and thanks to the innovation in Mesa County we have a blueprint in front of us that Larimer County needs to implement.”
There was no immediate response from the governor or the state health department Wednesday afternoon. Polis warned Tuesday that restaurants and other businesses that defy public health orders could lose their licenses. Even for Mesa County, state health officials appear queasy about the exceptions, warning county commissioners the variances may leave too many virus transmission paths open at a critical time.
The county efforts are signs of a wider chafing at the new state-imposed restrictions, which came to many counties after a sharp rise in virus cases that translated to packed local hospital beds and ICUs. While treatment for the worst COVID-19 cases has improved and fewer people end up in the ICU or on respirators, daily new case numbers above 6,000 overwhelmed those advances and pushed Colorado’s capacity into the danger zone.
State officials have said their primary goal throughout the pandemic has been to avoid chaotic hospital settings and dangerously ill patients facing triage or even rationing. They say state residents must sharply reduce encounters with strangers because the virus is approaching “community transmission” levels where cases can’t be traced and all settings are dangerous.
But desperate businesses and local leaders are looking around for loopholes in the system or perceived breaches of collective sacrifice. Denver Mayor Michael Hancock faced an instant firestorm Wednesday morning when word got out that he flew to see his family in another state, after he had spent weeks warning others not to travel or mix.
The mayor of Longmont, in Boulder County, said this week he did not want local hospitals to treat non-emergency virus patients from Weld County, since Weld County’s commissioners have also said their businesses and residents can defy Polis on mask-wearing and distancing.
Douglas County on Wednesday joined Larimer County in asking the governor to approve a safety-preference program like Mesa County’s.
“We are writing to advocate for the fair treatment of restaurants during this critical time of year. Restaurants are being unfairly penalized by the Level Red restrictions which include prohibition on indoor dining,” the three Douglas County commissioners wrote to Polis. “We are concerned that the appearance of the state selecting winners and losers will promote instability within the restaurant business sector and inhibit the path to recovery.”
Polis announced Wednesday that retail businesses would get to keep some of the 2.9% in state sales tax they collect for a limited number of months, to give them a small cushion against the shutdown hardships.
MORE: Will Colorado’s special legislative session save restaurants? “Probably not,” industry leader says.
Prominent Larimer County businesses met with local health officials Wednesday afternoon, asking to negotiate a reprieve from the tighter red-level restrictions that went into effect Tuesday afternoon. At the state’s red level, now the second-highest level of COVID-19 isolation restrictions, restaurants cannot have any in-person dining, for example.
The group of Larimer businesses, including restaurants and breweries, announced earlier in the week they would remain open for in-person activity in defiance of the order. Morgen Harrington, chief financial officer of Grimm Brothers Brewhouse in Loveland, said their taproom has made extraordinary efforts, from new ventilation to parking lot seating, to keep operations safe.
“The biggest fear for us is shutting down permanently,” Harrington said. “We had to lay off our entire staff in the first shutdown. I can’t look them in the eye and lay them off again literally days before Thanksgiving. One of them is pregnant, and I’m not going to tell her she doesn’t have a job. That, for us, is bigger than the fear of being shut down by the health department.”
Harrington and the Larimer County group said the Mesa County 5-star program makes sense, because “blanket” restrictions don’t acknowledge how much time and money many businesses have spent to keep their employees and customers safe from the pandemic. Harrington said small businesses feel unfairly targeted by restrictions that are likely to put many out of business entirely, while major retailers, like Walmart, are allowed to stay open and no one controls the customers’ mask-wearing or distancing.
At a chain grocery, Harrington said, “Nobody is wiping down the shelves after someone touches it. We wipe down the surfaces every time someone leaves, and common surfaces every half hour, like door knobs.” Grimm Brothers had to negotiate with a local HOA to put outdoor dining in their parking lot.
The program that other counties in Colorado are now hoping to follow, and that Polis has held up as a model for balancing commercial survival with COVID protections, began this summer as a collaboration between the Mesa County Public Health department and the Grand Junction Area Chamber of Commerce.
At the time the Variance Protection Program, the official name of the 5-star program, went into effect, Mesa County was in a lower-risk category for virus transmission. Restaurants could operate at half capacity for indoor dining. Bars were open with some restrictions.
At that time, what came to be called the Five-Star Certification program was more a badge of honor than a tool for survival. Restaurants that earned the certification were advertising that they were taking proper safety precautions, but it didn’t change how they could operate. They could be open at half capacity for indoor dining – the same as restaurants without the 5-star rating.
Over the first several months of the program, about 90 businesses applied.
Now that Mesa County has one of the most serious coronavirus spikes in the state and has been moved into the red high-risk zone on the state’s public health dial, the variance has turned into the difference between having to shutter a business or being able to limp through a winter of pandemic. The variance offers a way to override the state’s shutdown restrictions.
For example, restaurants that would be closed to indoor dining under state mandates for red-zone counties can remain open with their variances.
That has resulted in a run on applications that have overwhelmed the county and necessitated a change in how the program operates. More than 600 businesses have now applied for the variances, according to Mesa County Public Health Director Jeff Kuhr. More than 200 have been granted the variance. The wait time for processing variance requests has stretched to weeks.
“We know that we are in a critical state right now, and we are seeing businesses want to do their part,” Kuhr said.
When the program began, if a business could check off a series of online requirements such as posting “masks required” signs at entrances and having an employee monitor everyone coming in, the county would send a compliance person to do an on-site check. Only then, could a business be certified.
Now, certification simply requires a phone call to go over the checklist with a county compliance person. If all the boxes are checked, a business can be certified without an on-site inspection. An in-person visit might follow, but Kuhr said those visits have been backed up because of the volume of requests. He said some of the on-site inspectors also aren’t comfortable doing in-person visits with the Mesa County COVID rates being so high.
While making entry to the program easier, the county has also added more incentives for businesses to keep up their end of the bargain. If the county receives three legitimate public complaints – such as not adhering to mask requirements or going over the occupancy limits – a variance can be yanked. If county inspectors witness failures, that can also be cause for variance removal.
Kuhr said the county has removed about 10 businesses so far for not-adhering to the 5-star guidelines. He said the county soon will begin publishing the names of businesses that flunk out of the variance program. They will be posted at the bottom of the list the county publicizes daily with the names of those places with the variance.
The Colorado Department of Public Health and Environment is currently casting a skeptical eye on the program as Mesa County’s COVID rates keep climbing and ICU beds in the county max out. Last week the health department threatened to stop the program. But Polis stepped in and it was allowed to continue.
State health department director Jill Hunsaker Ryan detailed the state’s concerns in a letter to the Mesa County Commissioners.
Citing the county’s 12.15% positivity rate and the 1,931 new cases tallied in the previous two weeks, Hunsaker Ryan warned that variances could be modified or revoked “at any time.”
“Mesa County’s Variance Protection Program, a.k.a. Five Star Certification, is a commendable model for how to mitigate disease spread among businesses and we hope to see it replicated across the state,” she wrote. “However, it is yet to be determined if this tool is enough to provide intense suppression during a period of exponential growth in transmission.”
Hunsaker Ryan warned that she would leave the program in place until Dec. 3 while she monitored hospital capacity levels. Mesa County has maxed out its 50 intensive care beds in recent weeks while adding more than 200 new coronavirus cases on most days.
Kuhr said he believes the county can hang on to its variance program because so few of the coronavirus cases have been linked to businesses. Most are coming from private gatherings or institutional settings, he said.
“I don’t think we are giving people a false sense of security with this program at this point,” he said. “We trust our businesses to not look at this as a loophole, but to do it as a sincere way to contribute to the overall safety of our community.”