MORRISON, Colo. — A judge ruled Thursday that the temporary restraining order (TRO) will remain in place for Bandimere Speedway, a popular race track venue in Jefferson County, while she considers whether to grant a preliminary injunction that would limit their operations unless certain conditions are met.
The judge is expected to make a ruling on the injunction on July 21 due to the complicated nature of the case.
"Usually the judge will look up prior cases. These are first-time challenges," said Judge Tamara Russell. "I need to make an interpretation of the law that might be new."
The restraining order does not mean Bandimere is barred from hosting events, and one is set to take place at the venue on July 12.
The venue can host events with larger crowds, but must group people into designated activity areas which must be 50 feet from one another and can only include a maximum of 175 people. They must also maintain six feet of social distancing among non-family members and cannot host events with food that would violate the state's restaurant guidelines.
The injunction conditions, if granted, would include a pre-approved safety plan for every event and a required site visit.
Day two of the hearing, which was held virtually, began shortly after 8 a.m. Thursday.
It comes after Jefferson County Public Health (JCPH) said it would pursue legal action against Bandimere Speedway for an alleged violation of a public health order.
The violation occurred during its 4th of July celebration over the weekend, when, according to JCPH, the speedway failed to follow agreed-upon court-ordered requirements during the Jet Car Nationals event it hosted on Saturday. 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.
During Wednesday's hearing, the county said it planned to file a contempt violation with the court, but that would not be addressed at the hearing, which is solely related to the injunction and whether it should be granted.
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.
At the hearing, Randy Corporon an attorney for the Bandimere Speedway called the 4th of July event "unique," and admitted there were more people there than at prior events held at the speedway during May and June. Still, they maintained it was safe.
"None of that places the citizens of JeffCo at risk," Corporon argued. "We think it's tremendous overreach.”
They also argued that the restrictions from the county and state threaten to put the 62-year-old family-run speedway out of business.
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 on Tuesday and learned there were actually 7,500 people at the event.
"We have pictures from the venues and the stands and the places where they were buying food and lining up to buy food," Johnson said earlier. "It is clear that it was packed, that there were many more than the 4,500, and that the physical distancing was not maintained.”
Corporon argued in court Wednesday that the facility is 162 acres and said that's more than enough square footage to allow for social distancing.
Johnson said it would be possible, but difficult, to host that many people at a venue that size safely at this time.
"We could have allowed them to separate them all over their property—but instead they were all in the grandstands," he testified. "My concern is not so much about the acres — my concern is that people, 7,500, sat in close contact and gathered together for meals."
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.
Following a lunch break Wednesday, James Rada, who is with the environmental health services division of JCPH, took the stand. He said he spent about three hours at the speedway Saturday to observe the conditions and report whether their guidelines were being followed.
He testified that only one area appeared to be corded off to separate it as a designated activity area – but said there was one space for both entry and exit, which is not allowed under the health order. He also said it flowed directly into another area, which means it was not separated by the 50 feet required.
Lines for concessions were long, Rada testified, and crossed into the midway area, which forced people wanting to get from one side to other to cross through the line.
Johnson testified that it appeared the speedway had proper signage in place and did make public announcements, but said they fell short of enforcement and should have been proactive with guests to enforce the guidelines.
Rada added that when he testified, saying that workers at the top of the grandstands were "inconsistent at best" and said the ones he saw didn't appear to take any action to address issues. He also noted that 90% of the people in the grandstands were not wearing masks.
On cross-examination, Corporon asked Rada if he told anyone at the speedway about the violations he noticed, and he said he did not. Corporon argued that Rada was only at the event to "make a case."
While it couldn't be addressed in Wednesday's hearing, attorneys for Bandimere said they intended to argue in court that the state public health orders themselves are a violation of the First and 14th amendments of the constitution.
"How about having a conversation," Corporon said. "What they’re proposing is for you [the judge] to order that Bandimere submit a safety plan — one that no one could provide who has the authority to do that."
He argued that most of the deaths related to COVID-19 are among a very small segment of the population and said others should be able to "choose how they interact with others."
“People want to go to that race track — they ought to have that choice,” Corporon said.
The county argued for the injunction saying the impact of the 4th of July event won't be known for five to 14 days and during that time without an injunction, there will be another event at the speedway.
“It's not enough to say our fans want to attend," the county attorney said. "It involves the community. The public interest is in keeping people safe."
John Bandimere III, who deals with marketing, special events and event coordination, testified on Wednesday.
He said ahead of the 4th of July event, which typically sees 15,000 to 18,000 people, Bandimere reduced its advertising, stopped the promotion of complimentary tickets and halted ticket sales.
When asked if the lower attendance was because people didn’t want to attend or if it was because of the steps they took, Bandimere said, “Oh, it was the steps we took.”
- 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.
"But we can't control everything," Bandimere said during testimony.
He went on to say that 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.
In his closing arguments, Corporon suggested that the Bandimere family 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," he argued.
He said there are other things that could be done before taking the "significant step" of a preliminary injunction.
For its part, the county said the injunction was "meant as a peace offering" and said they did not want to see the speedway shut down.
"The question is how do you balance when there are no good choices?" the county attorney said. "And COVID-19 has put us in a place where there are no good choices."
9NEWS has reached out to Bandimere Speedway multiple times since Friday for comment. On Sunday on its Facebook page, the organization thanked community members for their support
"The Bandimere staff and family want to thank everyone for their support of the Brakes Plus Jet Car Nationals ‘Freedom Rally,'" the post says. "We can’t even begin to describe how much we appreciate the racers, fans, sponsors and our staff members for standing by our side."
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