Gov. Doug Ducey broke the law when he told police and liquor agents not to enforce statutes that prohibit restaurants from selling alcoholic beverages to go, a judge ruled Monday.
But, for the moment, it appears the governor is going to ignore the ruling — and allow the restaurants to keep competing illegally with bars — as he contemplates an appeal.
In an 18-page decision, Maricopa County Superior Court Judge Pamela Gates brushed aside most of the claims by more than 100 owners of bars throughout the state that it was wrong of the governor to single out their establishments for closure while other alcohol-serving establishments like restaurants were allowed to remain open.
Gates said there was sufficient evidence that bars posed more of a threat to public health due to the spread of COVID-19 than other kinds of business establishments. And with the legislature having granted the governor broad powers during an emergency, he had sufficient justification for the orders.
But the judge said nothing in the Arizona Constitution or even the emergency powers statutes entitles Ducey to ignore laws entirely. And in this case, she said, legislators had expressly prohibited the off-premises sale of alcoholic beverages by restaurants, reserving that privilege for those who obtained licenses to operate bars.
“A provision that bars the enforcement of unlawful conduct is contrary to state law and thus, exceeds the power delegated to the governor,” Gates ruled.
Both Ducey and the Arizona Restaurant Association had argued that the special privilege was necessary to help keep the businesses financially afloat.
They, like the bars, had initially been shuttered entirely. And even now they have to operate with limited capacity.
Gates said that is all legally irrelevant.
“The court takes no position on whether the law should be changed to allow to-go alcohol,” the judge wrote. “It merely holds that action is outside the power delegated to the governor … during a state of emergency because the action is contrary to current Arizona law.”
One reason bar owners brought the claim is that, under state law, they are the ones who can sell drinks and alcohol to go.
That is one of the privileges they get by buying the more expensive bar license versus a restaurant liquor permit. The other is not having to maintain 40% of sales in food as do restaurants.
Attorney Ilan Wurman said that his clients, already harmed by a ban on indoor operations — more recently changed to restrictions — are being further hurt financially as those off-premises sales were going to the restaurants which can be their direct competitors.
Gates as much as acknowledged that in ordering Ducey to rescind his illegal order.
She pointed out that, under other circumstances, anyone who suffers monetary damages from the actions of another can seek to recoup. But that’s not the case here.
“The court … finds the governor’s immunity will likely preclude plaintiffs from collecting damages,” Gates wrote. And that, the judge said, tips the balance in favor of her enjoining Ducey from continuing his order allowing the off-premises sale of alcohol from restaurants.
Ducey press aide Patrick Ptak said that the governor is reviewing the decision.
But there apparently are no immediate plans to actually comply while he contemplates an appeal. And here, too, the issue is providing financial relief to the restaurants.
“We want to make sure that we continue to help small businesses, and the Arizonans they employ, navigate through this pandemic,” Ptak said.
Dan Bogert, chief operating officer of the Arizona Restaurant Association, called the ruling “unfortunate,” pointing out they were closed for all of April and part of May and remain limited now to 50% capacity. The result, he said, is increased reliance on to-go orders — with those picking up meals also wanting alcoholic beverages.
“Without the ability to include alcohol with to-go orders, a key lifeline has been stripped from these businesses,” Bogert said. “This will no doubt lead to less profitability and possibly more permanent closure of our favorite gathering spots.”
For the moment, though, Gates said that other restrictions on bars can stand, even if they don’t apply to restaurants and other similar businesses. She said testimony covinces her there are certain things that happen in bars that make them “likely high-risk environments for the spread of the virus.”
“For example, bar patrons often move between groups and tables, mixing with other groups with whom they did not arrive,” the judge said.
“Also, bars are often loud, which causes individuals to draw closer to hear one another and to speak louder, thus increasing the risk of transmission,” Gates continued. “Furthermore, mask wearing is incompatible with drinking, and drinking alcohol impairs decision-making.”
Then there are the dance floors. The issue, the judge said, is that people not only mix but that limited ventilation and turbulent airflow patterns result in an environment where respiratory droplets are more easily spread.
And, if nothing else, it comes down to who are the patrons.
“Bars also tend to attract a younger adult population, which currently represents a significant demographic carrying COVID-19 in Arizona,” Gates said.
Wurman said the ruling is not the last word.
While Gates refused to immediately enjoin what Wurman said is the disparate treatment of bars, he said that still gives him a chance to make his case at a full-blown trial that there is no legitimate reason for discrimination. And that, he said, is buttressed by testimony from John Cocca, head of the Department of Liquor Licenses and Control, that in many cases there really is no difference between the activities of bars and restaurants.