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C&C Breakfast and Korean Kitchen, at 4284 Trail Boss Drive in Castle Rock, is open for business again.
C&C Breakfast and Korean Kitchen, at 4284 Trail Boss Drive in Castle Rock, is open for business again.
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COVID-19: C&C Diner Reopening, Lawsuit to Stop Second Shutdown

What a difference a month has made for C&C Breakfast and Korean Kitchen.

During a press conference about COVID-19 on May 11, Governor Jared Polis announced the temporary suspension of the Castle Rock eatery's license in the wake of a viral video showing its unauthorized opening on Mother's Day, during which social distancing and mask usage were largely nonexistent. But on June 14, after receiving the blessing of the Tri-County Health Department and kudos from Polis, C&C was back in business.

While this benchmark received little attention, that doesn't surprise attorney and KNUS radio personality Randy Corporon, who represents C&C in a Douglas County lawsuit and is preparing a federal complaint that will include the restaurant as a plaintiff. Corporon ate breakfast there on June 14, and says that beyond some delicious food, the experience was entirely uneventful. He says he can't remember if employees were wearing masks: "I think a lot of that stuff is way over the top. The conflicting science doesn't support it, so I don't pay close attention to it." But he does recall tables being spaced at least six feet apart, and markers on the floor to make it easy for patrons to properly space themselves.

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Oh, yeah: C&C also boasted what Corporon characterizes as "a nice display" near the front of the restaurant that played a recording of Polis talking about how pleased he was that the business had resolved its health hazard. "I think that's what they find pretty humorous," Corporon allows.

C&C owners April and Jesse Arellano don't see much else amusing about the events of the past several weeks. According to Corporon, the couple knew they would be losing money if they maintained a 25 percent cap on capacity — the measure proposed for many businesses prior to an executive order in late May boosting that total to 50 percent. And even after getting approval to reopen at the higher level on June 8, they had to deal with a severe staff shortage; Corporon says numerous employees had split because they could make more money on unemployment than by working. But numerous volunteers pitched in to help the Arellanos make a comeback in Castle Rock on their reopening day for on-premises dining. (The couple also owns a C&C in Colorado Springs, which stayed open throughout for to-go and now dining room seating.)

As for their earlier reopening, the owners remain frustrated at the widespread perception that the Mother's Day event was conceived as an attention-getting stunt.

"They had come to the conclusion that they were going to lose their business," Corporon explains. "It was secured by financing that could put their home and everything else at risk if they didn't open — so they did. They put something on social media to let folks know that enough was enough, but they had no idea hundreds of people were going to show up. They had set the place up on the inside with tables separated and things like that, and they had the outdoor patio open, but they were mobbed. They had no idea they were going to be launched into the media forefront." The size of the throng was so overwhelming, he adds, that at a certain point, the Arellanos "just threw their hands up and said, 'Let's do our thing.'"

The Douglas County lawsuit faults Polis for singling out C&C for punishment. But the crux of its argument focuses on constitutional arguments that will also be pressed in the upcoming federal lawsuit, which Corporon says is likely to include multiple businesses as plaintiffs. "We're still deciding whether to seek class certification or just move forward with three or four restaurants," he explains, "and hope that, win or lose, by going through the appeals process, we can create limits on any governor or official in the state from being able to exert these extraordinary powers in such a micro-managing way for such an extended period of time."

Corporon doesn't dispute that Polis, as governor, has emergency powers, and he thinks that the pandemic certainly qualifies as an emergency under the law. However, he argues that exercising this authority for nearly three months with no end in sight is going too far. He also objects to what he sees as the arbitrary nature of the rules as they've been applied. "You can have hundreds of people pack into a Walmart, but you're supposed to be limited to fifty people in a mega-church that's in an old Walmart building," he points out.

By filing a case in U.S. District Court, Corporon will be able to seek monetary damages on behalf of his clients. But just as important, he says, is the opportunity to set nationwide standards in advance of a potential second viral wave.

"If we can get findings that these things infringe on people's constitutional rights on a federal level, that can provide guidance for the governors in all fifty states — and it's very important to move it up the food chain if this virus is like most flus and we see a weather-related resurgence," he notes. The potential of an injunction prior to the start of what threatens to become COVID-19 season could well mean "we're not faced with more months of interminable shutdowns. The country can't afford it, and certainly these businesses can't afford it."

Concludes Corporon: "We need to put a damper on the over-exuberance of some public officials, who think they can control the virus without destroying other parts of our society."

Click to read the Tri-County Health order lifting the C&C Breakfast and Korean Kitchen summary suspension and the original lawsuit.

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