Judge allowing Bandimere to continue operating for now, but COVID-19-related restraining order to remain in place

Final decision on public health injunction put off until July 21

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A Jefferson County judge has left a temporary restraining order in place against Bandimere Speedway, but says her decision regarding a stricter preliminary injunction over public health guidelines to prevent the spread of COVID-19, will not come until July 21.

Judge Tamara Russell  said the temporary restraining order requiring Bandimere Speedway to abide by the provisions of the current public health order, which require social distancing at public events and limit capacity to 175 people per activity area, would remain in-effect. Bandimere is planning to hold its Bug-In racing event on July 11, but claims that event will attract a significantly smaller crowd than its July 4 Jet Car Nationals event did.

Judge Russell said at the close of arguments on July 9 that she wanted to wait to make her civil court case ruling on the preliminary injunction in order to give herself more time to review relevant documents and case law.

The preliminary injunction  would not allow Bandimere Speedway to hold events while the public health orders regarding COVID-19 are is in effect unless the speedway provides the county a safety plan to approve prior to each event.

"This is important and I want to do it the right way," said Russell. "I think this has a lot of implications for the community and I have to make an interpretation of the law that may be new."

During the hearing, which took place over two days, two Jefferson County public health officials testified that they attended portions of the July 4  event at Bandimere and witnessed violations of the current state public health order, ranging from more people sitting in grandstands than is allowed, to a lack of social distancing in concession areas. They said those violations came after the speedway had previously reached an agreement with the county to ensure it followed those rules. JCPH Executive Director Mark B. Johnson said that Bandimere agreed to cap attendance at 4,500 but that Bandimere later said the event drew an estimated 7,500 people.

The officials also said many of the issues with social distancing were exacerbated when a half-hour rain storm led many attendees to crowd into covered areas of the speedway. They acknowledged that the speedway also made attempts to promote behavior that would be consistent with the state public health order, including having an announcer give reminders to social distance every 15 minutes during the event, but said that those efforts ultimately did not appear to be successful enough in getting attendees to abide by the order.

Randy Corporon, Bandimere's attorney, argued that the speedway had made an effort to encourage attendees to abide by the health order, and it was impractical to expect the speedway to force attendees who disregarded those rules. When Corporon asked John Bandimere III, who operates the speedway with his family, if he thought there was more his family should do to enforce requirements Bandimere responded that he did not.

“I think there's a freedom to make choices for ourselves,” Bandimere III. “So for us to be the gestapo so to speak no, I do not think so.”

Corporon also suggested that the county could take other steps to reducing the risk of the spread of COVID-19 to vulnerable populations that do not involve “shutting down an iconic Jeffco family business” and said the speedway will be unable to remain financially viable if it is forced to adhere to the capacity limits established in the public health order.

But county attorney Rebecca Klymkowsky said an injunction must be granted when there is chance that not granting it could do irreparable harm to the community.

“There is no amount of money that Bandimere could pay, no fine that could be imposed that would compensate the community at large for exacerbating this public health emergency,” she said.

Klymokowsky also argued that the interest of ensuring public safety trumps Bandimere's interest in being able to have people attend its events.

“It is not enough for Bandimere to say our fans want to attend, this involves the entire community and the entire country,” she said. “When you consider it in that context, the public interest is in keeping people safe.”

During the hearing, Corporon also repeteadly questioned argued that the governor's order violated the state constitution and that placing what he described as unreasonable restrictions on businesses is not the most effective or sensible way to reduce the spread of COVID-19.

But at the end of Thursday's portion of the hearing, Russell said that "clearly this court is not in a position to find that the governor has overreached or given authority to different departments."

"That's not my job and I don't have any jurisidiction over that," she said.

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