Starting back up? Town council shows support for proposed variance request from state public health orders


By Chris Mannara
Staff Writer

At a special meeting on May 13, the Pagosa Springs Town Council voiced unanimous support for the draft request for a variance from the state’s public health orders pertaining to COVID-19, with that draft coming from small business owners.

The variance proposes allowing businesses that are not yet open due to public health orders -— for example, restaurants, gyms and pools — be able to do so while following criteria set out in a suppression plan, according to agenda documentation.

Archuleta County must be the applicant, and the variance request must include an alternative suppression plan for COVID-19 that is endorsed by San Juan Basin Public Health (SJBPH) and adopted by the Archuleta Board of County Commissioners (BoCC), agenda documentation notes.

Pagosa Springs Medical Center (PSMC) must also verify that it has the capacity to serve those needing its care, according to council agenda documentation.

Additionally, a county with tribal lands must also get approval from those tribes regarding the variance.

“Because of the closures that we’re experiencing in our community, for multiple businesses, they are struggling,” Town Manager Andrea Phillips explained. “While public health and safety is of the utmost importance, we also are looking at some economic issues in our community.”

The idea of the variance request came from a group of local small business owners, with one of them being Jason Cox of Riff Raff Brewing Company.

According to Cox, 10 to 15 businesses have contacted him in support of what he is doing in regard to the variance.

Cox explained that the purpose behind the request is to determine how Archuleta County businesses can reopen after going through the “flattening of the curve period” of COVID-19.

“Public safety is of the utmost importance. We’re not trying to suggest, bottom line, that we open at all cost and somehow create an issue in Archuleta County that we haven’t had before with a COVID-19 surge,” he said. “Our effort really is about planning and understanding how we can start returning our economy to some functioning level across all sectors.”

According to Cox, Public Health Order 20-28 allows for a variance process for individual counties to modify the state’s Safer at Home order to something more in tune with that particular county’s needs.

“We feel like Archuleta County has a strong case to receive a variance,” he said.

Counties such as Eagle, Sedgwick, Rio Blanco and Mesa have applied for similar variances and have been approved, Cox explained.

As of May 13, Archuleta County had had eight positive COVID-19 cases, with the county not reporting a new case since April 22, Cox explained.

The variance would allow businesses that are restricted under Public Health Order 20-28 to begin the process of opening and “restore economic order in the community,” Cox described.

Part of the variance process is having a set of “rules” that are tailored to Archuleta County, he added later.

The variance would allow for Archuleta County to have a customized plan that reopens the local economy in a step-by-step fashion and outlines various actions for various industry sectors, Cox explained.

Application process,
criteria and next steps

In order to apply for a variance from the state’s public health orders, a written application that certifies a county has a low case count is required and/or the county can document 14 consecutive days of decline in COVID-19 cases.

The Colorado Department of Public Health and Environment (CDPHE) must also review and approve the county-specific COVID-19 suppression plan, Cox explained.

Some of the criteria involved in reviewing a variance request involve showing a low prevalence of COVID-19 within the county and hospital capacity, among other things, Cox explained.

The review criteria for hospital capacity involves a county knowing how many ICU beds and ventilators its local hospital has, Cox explained.

“Our discussion with the Pagosa Springs Medical Center has been positive,” he said. “PSMC has not endorsed or denied this plan, this variance request.”

According to Cox, PSMC has indicated that it has some capacity to handle a surge.

PSMC has an agreement with Mercy Regional Medical Center in Durango and other hospitals in the region to transport patients for care in case of a surge as well.

Other review criteria involve the county demonstrating how it will detect new cases and contain the threat of an outbreak, as well as how positive cases will be confirmed and monitored.

The final two review criteria outline that the county would need to prove that what it is proposing works under the Safer at Home Order and that the variance provides protection equal to Public Health Order 20-28, he described further.

Cox suggested that if the county were to propose something riskier than Safer at Home, it wouldn’t be approved.

On May 13, Cox noted that the suppression plan is still in draft form, but that it contains “prescriptive guidance” for each industry sector in regard to reopening.

The plan also requires for businesses to self-certify through SJBPH, he added.

This demonstrates that the businesses understand the public health order requirements and are complying.

Following the possible approval of the variance request by the various governmental entities that are required to do so, the variance request would go to the CDPHE, Cox explained.

“Ultimately, we’re asking to open on May 22,” Cox said. “I think that’s pretty aggressive. I don’t think we’ll get there, but we have to have a target date.”

Council, commissioner thoughts

When asked by council member Shari Pierce how many businesses are participating in the effort, Cox responded by explaining that this effort is not being pursued by a subcommittee, but rather by him and his wife.

“This is me and my wife, Shelley, being entrepreneurial and pursuing this essentially on our own,” he said. “I have had lots of contact, probably 10 to 15 businesses have contacted me and said, ‘Hey we support what you’re doing. We like the ideas and we’re on board.’” 

Pierce highlighted that the plan states that SJBPH, if necessary, could reissue a local stay-at-home order for the county.

Cox noted that he would check in with SJBPH on that item and added that he was unsure how SJBPH would want to approach it, stating that going back to a stay-at-home order could be “a little bit too far.”

Later in the meeting, Cox explained that PSMC could help make the determination on whether or not to have more strict revisions to the variance based on surge levels.

“We have one chance to do this, and if we don’t get it right and if we have to roll back, then that’s going to hurt the rest of our summer,” Pierce said.

If a business were to self-certify but not follow the rules of the suppression plan, Town Attorney Clay Buchner explained that no one really knows just yet if the town could be held liable.

“It definitely opens the town up to some liability. In this sort of incident, it would most likely be a civil action rather than a statutory violation,” he said, adding that a lot of it would be done on a case-by-case basis.

The suppression plan will also include language to guide businesses on how to educate guests of their establishments, Cox added.

“I think getting our businesses that are still closed on board earlier will, in the long run, probably help us prevent an outbreak,” council member Matt DeGuise said.

However, DeGuise suggested leaving short-term rentals out of the variance request.

The town will have visitors coming in, and the town will have to educate them as best as it can, Mayor Don Volger explained.

“I think if we can get our local people to observe this new culture, as people come into the community, they’ll see us observing these practices and will follow the local norms hopefully,” he said.

Council member Nicole DeMarco noted that she was concerned about adding another set of rules amidst the pandemic.

“My concern with having this layer of decision making and then we have the state decision making is that it’s going to add more confusion,” she said.

During the meeting, BoCC Chair Ronnie Maez explained that the regulations proposed are “common sense” and “easy to follow.”

“We’re in this together. We’re one town and one county, we’re in this together whether we like it or not, but we’re in it together,” Maez said.