On a Saturday night in late November, Larimer County Commissioner Steve Johnson penned an email to various colleagues and local leaders about his experience dining outdoors in downtown Loveland, huddled, he wrote, with others around a propane heater in 38-degree weather.

“We should be ashamed of ourselves. I am. I’m ashamed to show my face as a government representative in these businesses,” Johnson wrote. He added, at the end of the note, “What we are doing is wrong, bad policy and making matters worse. It needs to be reexamined and changed.”

Johnson, a Republican, is among many primarily conservative officials who, along with business owners of various political stripes, is outspoken in opposition to the disproportionate harm the state’s county-level COVID-19 restrictions have on independently operated restaurants and bars that, in Larimer County and about half the counties in the state, have been forced to halt all indoor service.

In the absence of massive stimulus aid — something the state simply cannot afford to provide — thousands of these operators in Colorado are worried they’ll have to close in January, or soon after that.

Not willing to wait to find out, about 100 Loveland businesses banded together after it was announced late last month that Larimer County would be bumped up to Level Red on the state’s COVID-19 restriction dial, and vowed not to comply.

They issued a press release that concluded, “Therefore be it resolved: We, the undersigned business owners will remain open for business under the yellow guidelines” — Level Yellow is two notches of severity below Level Red — “to protect the public health and the economic livelihood of the community.”

Their local effort has highlighted how difficult it is to reconcile two priorities — reducing virus transmission and limiting economic ruin — that, as the state sees it, are largely irreconcilable. Inspired by a pilot program in Mesa County, others, including Larimer County, are now asking the state to OK loosened restrictions for businesses that meet certain safety criteria.

Non-compliance with regulations in Larimer County and beyond also has raised questions about fairness, and the seemingly inconsistent nature of enforcement of COVID-19 restrictions. Many who’ve resisted the state’s rules haven’t paid any price for that, leaving some business owners doubtful about how seriously the state takes its own rules and putting those businesses that all along have played by the rules at a competitive disadvantage.

“The goal is voluntary compliance,” said Meghan Tanis, spokeswoman for the Department of Revenue, which is one of several agencies tasked with enforcing COVID-19 rules. “We don’t want to go and shut down your place.”

But, Tanis added, “Some licensees are essentially telling us they have no plan to comply.”

An existential fight

The Loveland group is in compliance now, after its initial resistance. Because it’s hoping to convince the state to relax restrictions, it’s playing nice for the time being. But this group is not alone in resisting restrictions at one point or another.

Morgen Harrington, co-owner of the Grimm Brothers Brewhouse in Loveland and a leader of the small-business coalition, said she is contacted all the time by people outside Larimer County interested in variances from state-ordered COVID-19 restrictions. Mesa County is the state’s guinea pig for a variance program, and many others want in.

“I’m not built for this whole type of movement,” Harrington said. “We’re just grassroots, and we don’t know what we’re doing in terms of politics. We don’t want this to be an issue driven by political sides.”

Her local coalition, she stressed, should not be confused for sharing the generally anti-mask, far-right ideology of some prominent protesters of state restrictions, including Weld County’s commissioners and GOP state lawmakers who’ve called for “civil disobedience.”

Their fight, Harrington added, is an existential one.

“We were having to shut down again, with greater restrictions than big-box companies were allowed to operate with,” she said. “Just shutting down small businesses is not going to curb this pandemic enough, or stop the spread of the virus, but it will permanently shut down small businesses.”

Public health officials, including Dr. Anthony Fauci, have been clear that indoor drinking and dining poses a particularly high risk for virus transmission. The Centers for Disease Control and Prevention reported in September that people who’d dined at a restaurant were twice as likely to have contracted the coronavirus. The issue, scientists explain, is that prolonged indoor interaction — even among groups spaced six feet apart — creates ideal conditions for the spread of this airborne virus.

Speaking to reporters on Friday, Gov. Jared Polis said he hears questions regularly about why people can’t be in bars.

“The normal way we socialize would lead to tragic levels of loss of life. Double, triple, quadruple (an existing death toll) that is enough to mourn,” he said.

Fauci, addressing the Colorado press corps last week, stated, “Close the bars, open the schools.”

“Losing money every single day”

Julie Shaffer, owner of A.K.A. Kitchen in Loveland and a member of the coalition, was reminded Friday of how inconvenient the scientific consensus on indoor dining is for her business and employees. It was snowing outside, and as of mid-morning, she said, the restaurant’s total profit for the day was about $70. Meanwhile, she said, four employees were on hand.

Their wages, she said, “are coming out of my pocket right now. We’re losing money every single day.”

Before the coalition formed, Shaffer refused to be among the businesses in open defiance of regulations. She said she genuinely wanted to be in compliance, and also feared the optics.

“I don’t want to be that restaurant that people view as not caring” about public health, she said.

Shaffer watched as other businesses broke the rules and did not face enforcement — something Polis has threatened at various points.

Harrington said that of 98 businesses on her group’s list, she knows of only three — hers included — that have even been contacted by investigators recently. None lost their licenses. She thinks it’s no mistake that she, a vocal leader of the coalition, was warned by the state.

“It felt more like, ‘We are going to shush those of you who are going to make a stink publicly,’” she said.

There’s little evidence to suggest that rule breakers should necessarily expect to pay a price for defying COVID regulations. The Department of Revenue, which handles liquor licensing, reported Thursday it had suspended just five licenses during the pandemic — many times that number said they would defy the rules in Loveland alone — and the department believes that outside of those five, there have been very few liquor license suspensions handed down by local governments during the pandemic.

Liquor license suspension is just one form of enforcement that can be brought against a non-compliant business, but the state reports relatively little punishment handed down, and it seems to defer mostly to the judgment of local agencies. A spokeswoman with the Colorado Department of Public Health and Environment, for example, told The Denver Post that the department had issued one suspension during the pandemic, and sent six cease-and-desist orders.

The state does not track suspensions by local governments, though those do happen on occasion. This week saw local suspension action at the Lyons Den Restaurant and Taphouse and at Denver’s iconic Sam’s No. 3 diner, which faced enforcement from city health officials who said the diner wasn’t ensuring proper airflow.

Denver reported 249 documented violations of COVID-19 restrictions since May, with 21 leading to suspensions of businesses that have mostly been allowed to reopen. That the vast majority of those 249 did not at any point lose a license underscores that breaking the rules usually won’t lead to strong punishment. Among the 228 violations that didn’t lead to suspension are a gym where all patrons were observed breaking the mask rule and a strip club where dancers and patrons were found making physical contact.

Many of the violators correct the behavior quickly, but others do not, and that’s one cause for concerns about fairness.

“That’s a pretty hot topic,” said Tanis, with the Department of Revenue, noting a slew of complaints her office has gotten from business owners. “If one bar is closing down, they want to ensure the rest of the industry is playing on this field.”

Said Johnson, the Larimer County commissioner, “We have heard from those businesses that are following the rules. They do say it’s not fair. And that’s correct. … It is not fair to have some people operating illegally and some people operating legally. The whole premise of our free enterprise system is a level playing field.”

Potential workaround

Johnson is one in a group of local officials, plus dozens of local businesses, backing a proposed new program for Larimer County called Level Up, which would loosen restrictions on some of the businesses hit hardest by Level Red curbs.

Under this proposal, restaurants that are currently banned from hosting customers indoors would be able to apply to have 25% capacity indoors. Other changes would include a slight capacity bump — from 10% to 25% — for gyms. County delegates met with state officials this week.

They reported positive feedback, but so far no green light.

“I don’t need an atta boy from the governor’s office,” Harrington said. “I need action and assurance that we are on a pathway to reopen our business in a timely and meaningful way.”

She’s well aware that such a pathway may not present itself any time soon. Health officials are highly skeptical of proposals like Level Up. And one of these days, Harrington may not have a business to fight for. Under current restrictions, she said, a closure is a near-certainty.

“Worst-case scenario, Jan. 1,” she said. “Best case scenario, maybe a month past that.”