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Waiter Daniel O, right, gives customers Tim Lindstrom, left, and his daughter Amelia, 8, middle, a face mask to wear before they eat lunch at Red Gravy in downtown Colorado Springs on Thursday. Gov. Jared Polis issued an executive order Thursday mandating all Coloradans wear masks when they are in public. All Coloradans age 10 and up will be required to wear a mask in all indoor spaces. Exceptions include eating at a restaurant.

Denver District Court Judge Brian Whitney on Thursday, despite misgivings, denied a request for a temporary restraining order against the state over executive orders that business owners say have hurt the state's bar and restaurant industry.

A public health order issued in May limited the number of patrons a bar and restaurant could serve, depending the capacity of the establishment. Restaurants could open to in-person dining at 50% of capacity or 50 people, whichever is less. On June 18, that order was amended to allow larger restaurants to expand to 100 patrons, no matter how large the restaurant. Blake Street Tavern owner Chris Fuselier testified that his restaurant could seat 900, spread over three different rooms, but that the order still kept him at no more than 100.

The order was amended again to allow for more capacity from outdoor seating.

The "last call" order, issued July 21, required liquor stores, distilleries, breweries and restaurants to stop serving alcohol after 10 p.m. Polis amended the order two days later to make last call 10 p.m. for restaurants, and to allow liquor stores, breweries and distilleries to stay open until midnight.

The Tavern League of Colorado sued, calling the orders unfair and arbitrary.

Whitney said Thursday he knows his decision will harm businesses, and that he is sad for that.

However, he said he believed that public health officials from the Colorado Department of Public Health and Environment and the state epidemiologist used scientific and rational data to make the recommendations that led to the orders. 

CDPHE has maintained that the last call order targeted 20- to 29-year-olds, who are among the fastest-growing age group for COVID-19 infections. Whitney said the last call order targeted the patrons, not the industry itself.

Whitney said the plaintiffs claimed there was no rational relationship between the last call order and state policy, that it was politically motivated to make restaurants "the scapegoat" for other activities.

The state's attorneys claimed the orders were put in place to slow the spread of the pandemic, Whitney said, and to protect human life, the state's top priority. 

He added that there is no doubt that the pandemic has financially harmed the entertainment and hospitality industries unequally compared to other industries, which he said isn't because of the type of business but the type of patron.

Regardless of the outcome of the lawsuit, "I heard the plight of their concerns about employees and patrons. It was heartening to hear how much they want to continue their business," Whitney said.

Some of these businesses will fail, even though "they have been slavish to fulfilling the requirements put to them at every turn," he said, adding these orders have resulted in "towering unemployment, closing of many businesses, decimated budgets, total change to the banking system and unemployment that will be a problem well into the future."

But the other issue is that people, left to their own devices, won't take the significant precautions needed and the virus will get out of control. "We don't want to believe this is a problem," but the public needs guidance, Whitney said.

Addressing the capacity and social distancing requirements, Whitney said the state's choice was either to go back to stay-at-home orders or allow businesses to fully open, which would cost lives. The distancing requirement between tables is larger than other states, but data has shown that social distancing works, Whitney said.

The capacity limit is rationally based on scientific principles and is based on valid reasons, he decided. 

Whitney viewed the last call order only slightly differently. "It seemed unfair and arbitrary" and that restaurants were an easy target, he said. The age group being targeted is most likely to be asymptomatic, and most likely to still be in bars and restaurants after 10 p.m.

"I have to decide if the data is reliable enough, and I find it was," Whitney said, although it was clear the choice of 10 p.m. was arbitrary.

“We brought this lawsuit because we believed that the State’s policies were arbitrary," Fuselier said in a statement Thursday afternoon. "Sadly, our suspicions were confirmed as the State could not offer more than guesswork for decisions that are having a crippling effect on our industry. Worse, it’s clear that Polis has no clue how our industry works."

Fuselier added that Judge Whitney "said that many aspects of these policies are arbitrary. We’re not done. The case goes on. And, the State is going to have a harder time in the next phase of the lawsuit.”

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