Gov. Doug Ducey’s order closing bars remains intact, at least for the time being.
In a 14-page order late Tuesday, Maricopa County Superior Court Judge Pamela Gates spurned a request by the owners of more than 100 bars and taverns to block enforcement of executive orders that forbid bars from opening while allowing operation of restaurants with liquor licenses to continue to serve clients. She said Ducey’s orders “are rationally related to expert data and guidance on minimizing the spread of COVID-19 in our community.”
Gates also said she saw no evidence that the orders cause irreparable harm to the bar owners, one of the factors that judges are required to consider when determining if a law or order can remain in effect while it is being challenged.
On paper, Tuesday’s order does not end the legal fight. Gates still has to decide whether a full-blown trial is needed or whether to dismiss most of the claim.
But attorney Ilan Wurman conceded the chances of ultimately convincing Gates that the governor’s actions are illegal remain slim. So he already is eyeing taking the case to the state Court of Appeals.
Tuesday’s ruling was not a complete loss for Wurman and his clients.
Gates, an appointee of Gov. Jan Brewer, said the decision by Ducey to allow restaurants to sell alcoholic beverages to go — something prohibited by state law — “impermissibly stretches” the governor’s emergency powers. That paves the way for Gates to declare such “off-premises” sales illegal.
At the heart of the fight have been decisions made by Ducey going back to March about which kinds of businesses had to close in a bid to slow the spread of the coronavirus. That initially included all bars and restaurants, along with a host of other businesses.
Ducey relented in May, allowing both to operate under certain guidelines. But after a spike in the number of COVID-19 cases he partly reversed course.
Under the current version of his order, establishments licensed as bars cannot open. But establishments licensed under state liquor laws as restaurants — meaning they derive at least 40 percent of their revenue from food — are allowed to operate.
The governor said bars can open if they apply to the state Department of Health Services and detail how they will change their operations.
State health officials have described that in generic terms to operate like a restaurant. That means leading patrons to their seats, having to wear a mask except while eating and drinking, and having to remain at the table.
That means no mingling or informal meet-and-greet. And dancing, darts and pool are definitely out.
Gates first rejected Wurman’s arguments that the legislature acted unconstitutionally in giving broad powers to any governor who declares an emergency. She said those laws entitle Ducey to do only those things “consistent with existing law and the Arizona Constitution.”
The judge also rejected claims that it was discriminatory to shut down bars but allow restaurants to not just remain open but continue serving alcohol.
She pointed out that Ducey has relied on recommendations from the federal Centers for Disease Control and Prevention as well as the White House Coronavirus Task Force, both of which have said there are reasons to distinguish between traditional bars whose primary business is the sale of alcoholic beverages.
Gates cited statements submitted by Dr. Marjorie Bessel, chief clinical officer at Banner Health, who said bars “pose a uniquely dangerous environment for the spread of COVID-19.” Those factors, Bessel said, include the fact that bars typically feature loud environment “which result in raised voices and greater projection of orally emitted viral droplets and cause people to lean in to each other when speaking, posing a greater threat of transmission.”
Then there’s the dancing which Bessel said, couple with limited ventilation, results in an environment where respiratory droplets are more easily spread.
And finally it’s a question of age.
“Bars tend to attract a younger adult population, which currently represents the highest demographic carrying COVID-19 in Arizona,” Bessel said.
Gates said she was convinced, saying that bar patrons “often linger for hours, mixing with different individuals and groups.”
“The consumption of alcohol, even when not to the point of intoxication, can dull one’s sense of caution,” the judge wrote. “In addition, mask wearing is incompatible with sipping and sharing drinks.”
And Gates said there’s another key difference.
At a restaurant, she said, a server routinely comes to the table to tend to patrons.
“Bargoers often mingle throughout the bar and seek out a new drink from the bar top or a server spotted across the establishment,” the judge wrote.
Gates noted that the restrictions on bars is based on weekly reports of virus outbreak in each specific county. And the judge noted that the risk of spread has already has diminished to the point where bars can reopen in Greenlee and La Paz counties based on health conditions there.