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In defiance of public health orders aimed at slowing the spread of COVID-19, a local Durango diner has chosen to remain open to indoor dining, with its owner saying he cannot survive anymore restrictions on operating.

Because of a significant surge in positive cases, La Plata County on Nov. 20 moved into the “Level Red” safer-at-home public health order, which limits restaurants to takeout, delivery and outdoor seating. No in-person dining is permitted.

Jerry Martinez, owner of CJ’s Diner, said his restaurant would not be able to survive another shutdown to indoor seating, and has chosen to remain open to keep his business afloat and his staff members employed.

“We’ve done everything they asked us to do,” Martinez said. “And to me, at some point, I’m going to sit here and lay down? I’m done with that. It’s the only way I can stay alive and employed.”

Martinez said the longtime diner at 810 East College Drive was forced to completely shut down at the onset of the pandemic when restaurants were last limited to takeout and delivery, saying those two options lost his restaurant money.

Summer business was strong, Martinez said, but the diner continued to lose significant revenue from the loss of caterings, which account for 50% of sales. Out of 49 weddings, he said 38 were canceled.

As a result, Martinez estimated his diner has lost about $220,000 this year.

“Think about that in a small business,” he said. “We’ve done everything they asked us to do. ... Since March, we’ve walked through this thing losing money left and right and questioning how do we make our business work.”

Martinez argued liquor stores and dispensaries have been allowed to remain open, but the virus can spread in those businesses just as it can in restaurants. He said the public health orders don’t consider business owners and employees.

“We’re concerned about COVID and people getting sick and all that, but you’re not concerned about the livelihood of people’s lives?” Martinez said. “I want them to come tell our 15 employees they don’t have a job right now.”

Recently, the Colorado Restaurant Association reported that statewide, an estimated 65% of restaurants could close within the next six months under current conditions and if no aid is received.

Since the pandemic, several restaurants have closed permanently, at least in part because of the COVID-19 pandemic, such as Eno Cocktail Lounge and Wine Bar, the Palace Restaurant, the Irish Embassy Pub, Kassidy’s Kitchen and Pura Vida in Vallecito.

In an effort to keep his business afloat and his employees with jobs, Martinez said he made the decision to continue to serve people inside, despite the recently issued Level Red health order.

At the La Plata County commissioners’ meeting Tuesday, David Woodruff, president of the Colorado Restaurant Association’s Durango chapter and general manager at El Moro Spirits and Tavern, asked that restaurants be allowed to operate at 25% capacity, at a minimum.

And Sue Fusco, co-owner of Ken & Sue’s, said it would be nice to know how long the restriction on in-person dining will be in place.

“It’s really hard to make business decisions on the unknown,” she said.

Since the Level Red order went into effect Nov. 20, Martinez said business has been OK, with support coming from his loyal customers.

“I feel like people are supportive of us,” he said of the diner, which has been around for 20 years. “They’ve called us, they’ve said, ‘We’ll stand with you.’”

Only a handful of businesses have openly defied public health orders in recent months. Top That Frozen Yogurt in downtown Durango and Farmers Fresh in Ignacio, for instance, have chosen not to enforce the mandatory mask order.

Martinez said a coalition of about 15 restaurants plan to band together to announce they will continue to stay open for in-person dining, though he did not know the specifics of what restaurants and when the announcement would be made.

The question of enforcement has also been a bit of an open-ended question since the pandemic started.

San Juan Basin Public Health, La Plata County’s health department, has the ability to enforce the orders, but the department has said it does not have the resources to take the lead on enforcement actions.

Brian Devine with SJBPH said Tuesday there have been no formal complaints about CJ’s Diner continuing to offer in-person dining in recent days.

“Nonetheless, we are beginning an investigation and coordinating support from all appropriate jurisdictional authorities,” he said.

The city of Durango on Monday passed an emergency ordinance to increase its enforcement abilities, but the new order applies only to enforcing the mandatory mask ordinance, not staying open to indoor dining.

City Manager José Madrigal declined to comment, saying the situation may turn into an investigation on the part of the city.

Martinez said he is aware, and prepared, should the possibility of enforcement come. As president of the 100 Durango Club, which supports emergency personnel and first responders, he’s already talked to police.

“The sad thing is, those are the guys that are going to have to come say something to me,” Martinez said. “And I’m going to tell them I’m not going to close. I’m not going to do it.”

jromeo@durangoherald.com