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Two businesses in La Plata County are accused of breaking a state order that requires people to wear face coverings to prevent the spread of COVID-19, but local and state agencies are pointing fingers at who should take the lead on any type of enforcement action.

“We have been ineffective at ensuring compliance,” La Plata County Commissioner Julie Westendorff said at a work session this week. “After multiple months of being aware of a lack of compliance, we are still struggling.”

For months, Farmers Fresh Market in Ignacio and Top That Frozen Yogurt in downtown Durango have not been requiring staff members or customers to wear face coverings, drawing multiple complaints from the public.

Last week, Top That Frozen Yogurt announced it had been offering a 10% discount to customers who came into the shop in the 600 block of Main Avenue without a mask.

San Juan Basin Public Health, La Plata County’s local health department, for weeks has said enforcement needs to be taken on the two businesses to stop them from creating a public health risk.

“This is more serious than violating PHO (public health orders) through ignorance or lack of managerial control,” SJBPH wrote in a statement to The Durango Herald after Top That Frozen Yogurt’s no-mask discount came to light. “And SJBPH is looking at all legal options available to stop Top That from willfully creating a risk to public health.”

To date, no enforcement action has been taken, and local officials and agencies are vague about what is being done to stop the businesses from violating the public health order.

Liane Jollon, executive director of SJBPH, said the local health department is not taking the lead on any type of enforcement.

“I’m not saying we can’t, but ... we are not, as an organization, pursuing enforcement,” Jollon said.

Instead, Jollon said the health department has asked other local agencies to take the lead on enforcement.

A public health order issued earlier this year gives municipalities the authority to revoke business licenses if a business is violating a public health order, but the city of Durango is not going in that direction, said City Manager Jose Madrigal.

In fact, Madrigal said he doesn’t believe the public health order does give municipalities that authority, and he said the city’s legal advisers recommended against revoking Top That Frozen Yogurt’s business license.

“It’s a complicated issue when you look at enforcement,” he said.

Madrigal did not answer calls seeking further clarification Friday morning.

In Colorado, there are six enforcement actions that can be taken toward businesses violating public health orders in place during the COVID-19 pandemic, including law enforcement closing the business, revocation of a business license and a citation to appear in court on criminal violations, to name three of them.

While rare, there have been clear instances in Colorado where businesses have faced consequences for flagrantly violating public health orders.

In May, a Castle Rock restaurant called C&C Coffee and Kitchen caught national attention after reopening indoor dining, which at the time was prohibited, and not encouraging social distancing or face coverings in the store.

After ignoring warnings, the Colorado Department of Public Health and Environment suspended the restaurant’s license. The local health department, Tri-County Health Department, also ordered the restaurant to shut down.

The restaurant was closed May 12, just days after reopening.

Also in May, the Garfield County Public Health Department issued a cease-and-desist order for Shooters Grill in Rifle, owned by 3rd Congressional District Republican candidate Lauren Boebert, for serving customers on-site.

After Shooters Grill ignored the cease-and-desist order and continued to serve customers, the health department suspended its business license, effectively closing the restaurant.

SJBPH has asked for assistance from CDPHE and the Colorado Attorney General’s Office on how to deal with Farmers Fresh Market and Top That Frozen Yogurt.

But Jollon said the state agencies have not yet provided any assistance. She said SJBPH prefers to go the route that was taken with C&C Coffee and Kitchen, where the local health department and CDPHE issued enforcement actions.

The Attorney General’s Office referred all questions to CDPHE. When asked for comment, a representative with CDPHE pushed the responsibility back onto local agencies in La Plata County.

“We expect the local jurisdiction to take the enforcement lead with regards to businesses in their communities,” the spokesperson said. “We remain available for technical assistance and support for local public health associations in any enforcement actions they take.”

Stalled enforcement actions are causing frustration to bubble up. At a work session this week, Westendorff said she keeps hearing complaints from the public that no action is being taken.

“It is difficult for me to articulate the frustration from members of the community,” she said. “People ... are very concerned about the impacts of coronavirus on our community, economically and health-wise. ... We have evidence, I don’t understand why that’s not enough to get us over the hump.”

Westendorff also took issue with the state, saying it seems to be ignoring La Plata County.

“We are a low priority for the state,” she said. “We won’t get their resources.”

A woman who answered Top That Frozen Yogurt’s phone Thursday identified herself as co-owner and gave only her first name, Lisa, saying she was fearful of retribution from the public.

Lisa said the restaurant has not “heard a single word” from SJBPH, though Jollon provided multiple documents that show continued outreach to the yogurt shop about violations to public health orders.

Lisa said the store has received multiple death threats and has been vandalized since the Herald published a story last week about the store offering a 10% discount to customers who entered without a mask.

“It’s just sad seeing all the hate in the local community here, and around the world, saying how they want our business to get shut down,” she said. “This is our livelihood. This is all we have.”

In a previous interview, Farmers Fresh Market General Manager Amos Lee said he allows his staff members and customers to make their own decision about whether to wear a mask, and it shouldn’t be up to businesses to enforce the mandate.

“Why this should be on businesses ... to enforce these things is just beyond me,” Lee said. “If someone wants to come enforce it, they can knock themselves out.”

The health department receives complaints about businesses not following health orders on a daily basis, but the complaints usually document minor offenses, and for the most part, businesses want to follow the rules, Jollon said.

Only six or so businesses in the community have openly taken actions to not follow the health order, she said. And the situation is further complicated because there is no statewide process for enforcement actions.

“It is very unfortunate when a business chooses to disregard the health and safety of the community,” she said. “And this is a huge concern going into colder months where we are concerned about rising cases.”

jromeo@durangoherald.com