Issue: Arizona State Senate

State senators return to the Capitol on Tuesday with the goal of finally finishing out the on-again off-again session that began in January.

But it remains to be seen whether there are the votes for — or even the interest in considering — two last-minute measures approved Thursday by the House before it shut down its session.

The more controversial of these, HB 2912, would limit the liability of businesses facing lawsuits from patrons and customers who claim they contracted COVID-19. It would require them to prove not just that the business was negligent in its operations but that that it was grossly negligent — essentially that there was a conscious and voluntary disregard for reasonable standards of care.

But it’s not simply a matter of lining up the necessary 16 votes. There’s also a procedural issue.

Senate President Karen Fann, R-Prescott, said she is looking to wrap up all unfinished business on Tuesday.

Only thing is, Senate rules require that any bills that arrive from the House go through a formal process.

That includes a mandate to read all bills three times — on three separate days. That would drag the process into Thursday.

And patience may be running out for senators, who voted 24-6 earlier this month to say they were ready to go home.

That same problem exists for HB 2913.

It would provide authorization for the state to spend $88 million it is getting to provide forgivable loans to child care facilities. But it, too, needs three readings.

What could be done in one day, Fann said, are 28 House-passed measures that already have been through the first two readings and could be acted on immediately. Fann also said she has weeded through these and eliminated any that might stir up controversy.

That’s not to say that all legislative business is done for the year or that the liability protections and child care measures are dead if they don’t get a vote on Tuesday.

Fann said she is anticipating a special session focused on issues limited to the fallout and reaction to the pandemic that has crippled segments of the Arizona economy. And that, from her perspective, includes some liability shields for “mom-and-pop businesses” that reopen and follow guidelines of the Centers for Disease Control and Prevention for things like distancing and sanitation.

“If someone were to come in later try to claim they got COVID-19 going into their business … then the small business owners is having to defend all these potentially frivolous cases,” Fann said.

Some of that may take care of itself now that Gov. Doug Ducey has lifted some of the restrictions he placed on businesses, including the closure orders. But they continue to have to operate in a limited fashion, including “social distancing” requirements that have effectively capped the number of customers who can go into everything from grocery and hardware stores to bars, restaurants and, when they reopen, movie theaters.

The question for senators whenever they take up the issue is whether the lawsuit protections approved by the House are too broad.

It contains no specific “safe harbor” to protect businesses that comply with CDC standards, one of the things Fann said she wanted. Instead, it contains the requirement to prove gross negligence to be able to sue for damages.

“I haven’t had a chance to go over the bill,” Fann said Friday, saying she will be reviewing it over the weekend.

Other Republicans, like Sen. Paul Boyer, also told Capitol Media Services they have some questions about raising the standard to sue to gross negligence.

Sen. Eddie Farnsworth, R-Gilbert, who helped craft the House bill and will be promoting its Senate approval on Tuesday, defended not tying liability limits to compliance with specific standards.

“Standards change,” he said. And Farnsworth said there are problems with tying the ability of a business to defend itself to any particular standard.

One, he said, is practical. Consider the requirement for “social distancing” to keep six feet between individuals or, at least, between groups of customers.

“How does he force customers not to be within six feet?” Farnsworth asks, other than kicking them out of the business.

Then there’s the problem of a situation where maybe the tables are only five feet apart. Farnsworth said that should not lead to the possibility of a lawsuit.

And then, he said, it does not take into account that not all businesses are alike.

“A salon industry is much different than a restaurant industry,” Farnsworth said. So, too, he said, are doctor’s offices.

“So a one size for all doesn’t work,” Farnsworth said.

There’s something else that could doom the bill.

The other key provision eliminates the ability to charge those who violate a gubernatorial executive order during an emergency with a misdemeanor, complete with a possible $2,500 fine and six months in jail and, for business owners, the potential loss of license. It would be replaced by a $100 fine.

Ducey, who has used that threat of a criminal conviction to urge compliance, has so far sidestepped questions about whether he would sign or veto the measure. But Boyer questioned whether it’s wise to even put him in that position.

“I don’t like poking the governor in the eye,” he said.

Among the 28 bills that Fann wants Senate action on Tuesday are:

– Requiring schools to teach information about the Holocaust and other genocides at least twice between grades 7 and 12;

– Allowing judges to set aside convictions of certain traffic offenses, including driving on a suspended, revoked or canceled license;

– Prohibiting school districts and charter schools from hiring people not certified as teachers if they have been convicted of certain crimes;

– Requiring that one member of the State Liquor Board be a currently elected city or town official;

– Mandating that students who have to attend defensive driving classes be taught about laws that require them to move over when approaching an emergency vehicle;

– Extending state laws that put $1 of every motorcycle registration fee into a special Motorcycle Safety Fund;

– Increasing the required qualifications to run for and serve as state mine inspector.