JEFFERSON COUNTY, Colo. — A new public health order issued in Jefferson County late Monday made the issue of an injunction against Bandimere Speedway "moot," according to the judge overseeing the hearing.
Jefferson County Judge Tamara Russell on Tuesday refused to grant the injunction which, if granted, would have required Bandimere Speedway to submit safety plans to public health officials ahead of every event they host.
In a hearing Tuesday morning, it was brought up that a new public health order (PHO) went into effect at 5 p.m. Monday. It requires anyone hosting an event with more than 175 people to have a pre-approved safety plan. A mandate for face coverings also went into effect in Jefferson County after the last hearing that was held about the Bandimere Speedway.
Russell called the latest PHO "ill-timed" and said she was not sure if she could issue an injunction to force the speedway to do something that's now required under the PHO. To allow time to consider the new orders, Russell called a 20-minute recess.
When she returned, Russell said she did find evidence that the speedway was not in compliance with public health orders. She said the court also found that non-compliance with the health orders would result in a "significant risk of irreparable harm," which is something that the county had to prove in order to have its injunction granted.
Despite those two factors, Russell said she could not legally issue the injunction because they're also put in place to "preserve the status quo." She said when the new orders were issued, the status quo had already changed.
"I don't have evidence they haven't complied," she said, while noting she couldn't make her decision based on whether they would comply with the new guidelines in the future.
She also vacated a temporary restraining order (TRO) that had already been in place since early July, which required the venue in Morrison to comply with all public health orders related to COVID-19. However, Russell cautioned that Bandimere must still comply with all local and state orders even if they're challenging those orders in court.
"I assume I’ll see all of you right back here again if you [the county and Bandimere] don’t work together," she said.
The judge also rejected a counter claim by Bandimere Speedway which argued that the state and county health orders are "illegal and unenforceable," because she said it was an issue for another court because her job is not to make laws, but rather enforce them.
"Let me say this straight to Bandimere, you have to follow the law until you challenge them and they’re overturned," she said.
Jefferson County Public Health (JCPH) pursued legal action against Bandimere Speedway for an alleged violation of a public health order.
The alleged violation occurred during its 4th of July celebration when, according to JCPH, the speedway failed to follow agreed-upon court-ordered requirements during the Jet Car Nationals event.
The department said it was disappointed that the organization failed to limit and manage crowd sizes, implement social distancing requirements and adhere to COVID-19 requirements in Colorado Public Health Order 20-28.
According to a statement from JCPH, Bandimere Speedway agreed to "clear, court-ordered requirements" before the event and said it would comply, but instead violated those requirements.
During a July 8 hearing about the injunction, the county said it planned to file a contempt violation with the court against Bandimere for failing to comply with the TRO. That issue will be addressed by the court separately from the injunction.
Dr. Mark Johnson, JCPH executive director, said the speedway agreed to cap the crowd at 4,500 people. The venue holds 23,000, he said.
In court, Johnson said he spoke with a member of the Bandimere family after the event and learned there were actually 7,500 people there.
According to health officials, in order to host more than 175 people, they would have to group people in designated activity areas and there would have to be at least 50 feet between them. Each group could consist of 175 people, and there should be limited interaction among members of each group.
John Bandimere III testified in court about the precautions they had put in place ahead of the event.
They included:
- An additional 50 signs were made so that every row of the grandstands would be marked off with signage.
- Bandimere's food vendors were required to wear masks during the event.
- Masks were “strongly recommended” and but not “required” for guests.
- An additional 20 staff were hired to assist with social distancing and to help maintain safety.
- 150 staff members were located all over the speedway doing different jobs; there was training for various duties.
- Staff was educated on how to be responsible and to teach or remind patrons how to be responsible.
- Signage was posted in several locations including entrances into grandstands and areas where people might congregate as reminders to social distance.
Bandimere also said his impression was that if the speedway was trying to do all the things they talked about with JCPH – protocols in place, educate people, spread people out – as long as the speedway could do that with much smaller numbers, they were going to be in compliance.
Attorneys for the speedway argued that the family should be given the benefit of the doubt.
“The fact that it didn’t work out the way everyone expected it to or hoped it might should not be the basis to basically hand over their events to the control of the county," Randy Corporon argued.
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