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Arizona eases bar restrictions on games – but no dancing

Karaoke is back at your local bar.

So are pool and darts. Also video games and pinball.

And you can even participate in axe throwing if that’s your thing.

But leave the dancing shoes at home. For the moment, Arizona remains a dance-free zone.

The changes come as the state Department of Health Services has decided that these activities, which have been forbidden for months under the COVID-19 emergency restrictions, can now be conducted – if certain precautions are taken.

There was no immediate response from the health department to questions about why the sudden change in what’s allowable.

But nothing in the risks from the virus has changed substantially since at least August according to the agency’s own “dashboard” which determines the restrictions on business. In fact, the percent of tests for the virus that have been coming up positive actually is showing an upward trend.

What has changed is that Gov. Doug Ducey and state DHS Director Cara Christ are defending themselves in court against a lawsuit brought by more than 100 bar owners charging that their rules are unlawfully discriminatory. That is because restaurants have been able to open and operate pretty much normally now for months, albeit with some occupancy limits, while bars face additional hurdles not only to open but, if they do, to the kinds of traditional activities that have brought in customers.

Attorney Ilan Wurman, who represents the bar owners, told Capitol Media Services that none of these changes will end that lawsuit. He said there are still unjustified restrictions on how his clients can do business, particularly in comparison to what some places licensed as restaurants have been able to do.

But Wurman said they will make a difference.

“It’s a huge deal,” he said.

For example, he said, some of his clients were promoting special nights for pool or darts tournaments, even though those contests didn’t generate a lot of cash themselves.

“But no one was showing up to have a drink,” Wurman said, without the “draw” of the games.

Still, things won’t look exactly the way they did before the governor enacted his emergency restrictions in March.

Take karaoke.

The person with the microphone has to be at least 12 feet away from the closest customer. Health officials have said that things like singing tend to project moisture particles farther than the normal six-foot “social distancing” barrier.

But with plexiglass dividers in place, six feet is acceptable.

Microphones have to be disinfected or changed out between customers.

And while it may interfere with hitting some of those high notes, participants have to keep their masks on.

More interested in a game of pool?

That, too, is now OK, but with a maximum of four players for a table and no one else gathered around. There has to be that six-foot physical distancing between the players and other game areas. And if players don’t have their own equipment, everything else needs to be disinfected between each group’s use.

Arcade and video games have their own set of rules, with just two players to a machine – and no spectators or cheering section behind them. There also are the physical distancing requirements, whether it’s the six feet of space or closing off every other machine.

Plus, of course, masks are mandatory.

The new rules also account for bowling and even axe throwing, with only the active participant permitted to be out of his or her chair and a limit of no more than 10 players and observers.

And if you have your own bowling ball – or axe – please bring it.

The rules are set up pretty much so that those who are not participating in any activity are supposed to remain seated except to play or go to the bathroom. Standing, mingling and dancing remain off limits.

In fact, the rules say if there is a dance floor it has to be closed off to the public or “repurposed” for more seats to allow greater social distancing among patrons.

Arizona has not actually been game-free all this time. Wurman pointed out that some enterprises that sell alcohol but are licensed as restaurants, like Dave and Buster’s, have had arcade games all along.

What this does, he said, is level the playing field and allow facilities licensed as bars to compete head-to-head.

Arizona governor gets good, bad marks for virus response

President Donald Trump meets with Arizona Gov. Doug Ducey in the Oval Office of the White House in Washington, Wednesday, Aug. 5, 2020. (AP Photo/Andrew Harnik)

In early August, Arizona Gov. Doug Ducey beamed in the White House as he basked in praise from President Donald Trump for his handling of the COVID-19 outbreak. Arizona’s response to the virus, Trump said, was a model for other states.

Just a few weeks earlier, Ducey was being vilified as Arizona hospital beds filled with infected patients and hundreds of people were dying each week. Arizona was the leading virus hot spot in the nation and the Republican governor was getting the blame.

The governor’s management of the coronavirus though the pandemic’s initial low stages to its extreme onslaught and back to lows again holds stark lessons for other states as their leaders oversee reopenings of universities, K-12 schools and businesses into the fall.

Whether Ducey deserves credit or blame for alternately controlling and unleashing the virus is not in doubt — observers say he’s earned both.

Ducey for months has tried to juggle conflicting virus priorities of politics and public safety while attempting to minimize the economic harm from closing businesses and to rein in a unique, fast-spreading and sometimes lethal virus in a state with a strong libertarian fabric.

Wearing masks, staying home and keeping safe social distances, as in some other places, became a sticky conflict point among many headstrong Arizona residents.

Like many governors, Ducey took the early prevention step of shutting down much of the state’s economy and invoking a stay-home order in March.

But he reopened the economy in May with little or no enforcement of new rules like limits on bar capacity. Bars and nightclubs in Tucson and metro Phoenix were packed the weekend after the lockdown was lifted.

A surge of new infections hit the state just 10 days later and Arizona hospitals were packed with the sick within weeks, nearing their capacity to treat patients.

On June 1, Arizona had confirmed more than 20,000 virus cases and had 917 deaths. They continued rising over the summer, with cases topping 200,000 in late August, and deaths surpassing 5,000.

Some believe Ducey reopened so early because Trump made a visit to Phoenix in early May to visit a plant making protective masks. Ducey’s decision to quickly remove restrictions instead of using a measured approach has also come under criticism.

“It wasn’t phased in – it was just ‘boom open it all up’ – timed to when Trump came to Arizona,” said Regina Romero, the Democratic mayor of Tucson. “And I felt very strongly that it was too soon, that it was timed for political purposes and not based on science and public health.”

Kristin Urquiza made local and national headlines when she blamed Ducey for the death of her 65-year-old father, Mark Anthony Urquiza of Phoenix, who died of the virus June 30. She said her father was serious about taking virus prevention steps until Arizona’s reopening, when he resumed his normal life and headed to a karaoke bar with friends only to get infected.

“His life was robbed. I believe that terrible leadership and flawed policies put my father’s life in the balance,” Urquiza said in July ahead of her appearance at the Democratic National Convention, where she criticized Trump.

Ducey has brushed off the criticism, repeatedly saying that his decisions are informed by science and data from health experts.

In late May, Ducey pushed back on reporter questions about videos from old town Scottsdale on Memorial Day that showed crowds of hundreds of people partying in the nightclub district. He repeatedly avoided criticizing businesses and people ignoring social distancing guidance and stressed that most people were following the rules.

At that point, the state had fewer than 1,000 new virus cases daily.

“Thank you to the people of Arizona for being responsible,” Ducey said. “We wouldn’t have these numbers if people weren’t being responsible.”

But Ducey simultaneously ignored advice from health officials outside his administration. Just seven days after his stay-home order ended on May 15, the president of the Arizona Medical Association physicians group sent Ducey a letter urging him to crack down on bars and nightclubs that weren’t enforcing social distancing guidelines.

“Now, there is clear proof of overcrowded bars, people elbow to elbow, increasing significant risk of potential spread and a resurgence of the virus,” Dr. Ross Goldberg wrote in a May 22 letter obtained from Ducey’s office by The Associated Press under a public records request.

Goldberg in his letter urged Ducey to take enforcement action, but it did not happen.

Case counts rose exponentially and by mid-June the state was a national virus hotspot, logging more than 3,000 cases a day and on its way to a June 29 peak of more than 5,400 new daily cases.

“The reopening that we saw in May came much faster and all together than I think any of the public health folks would have recommended,” said Dr. Bob England, the former director of the Pima and Maricopa County health departments.

By June 17, Ducey’s hand was forced into making politically unpalatable decisions.

Ducey early on had banned local governments from taking steps beyond what the state was ordering, but reversed course by allowing cities and counties to impose mask requirements. At the end of June, he re-ordered bars, nightclubs, movie theaters and water parks to close.

By late July, and a month later Arizona was no longer a virus hotspot. Bars and nightclubs that serve food and other venues in much of the state were allowed to reopen with limited capacity.

But this time, bars that violated limits on capacity and bans on dancing or violations of mask orders were subjected to a state crackdown: Several were closed by state health authorities and their liquor licenses were suspended indefinitely.

Dr. Eric Toner, a senior scholar at the John Hopkins Center for Health Security in Baltimore who has been setting health care preparedness policy for pandemics for decades, gives Ducey credit for acting this time to prevent big bar scenes.

“You have to be actively looking for non-adherence to the guidelines, and you have to be vigorous in enforcement,” he said.

But Toner said Ducey deserves criticism for failure to act earlier against packed bars.

“I think that’s probably the biggest factor in why Arizona’s cases got so big,” Toner said. “It was a delayed response, a slow response by the state government to the spike in cases.”

Toner warned that Arizona’s responses can serve as lessons for other states.

“Governments need to be very responsive and not wait for things to get bad – because once they get bad then it’s going to take weeks or months to recover,” he said.

Bar owners grill health director on end to closure

The state’s top health official testified October 8 she cannot say when the current COVID-19 health emergency will be over, the governor will rescind his orders, and Arizonans will be able to get their lives back to the way they were before.

In fact, Cara Christ said a decline to minimal levels in the benchmarks her agency created to determine the risk of spread won’t necessarily lead her to recommend to her boss, Gov. Doug Ducey, that he dissolve his orders and give up the emergency powers he assumed in March. She said there are other considerations.

But Christ also said that it won’t take the virus being gone for there no longer to be an emergency. She said it may be that Arizonans are just going to have to live with it.

What currently makes any disease an emergency is that it could overwhelm hospitals. That, Christ said, is why there was a declaration in March by Ducey, with the rapid spread of the coronavirus.

At some point, though, she said that won’t be the case.

“That would change with COVID-19 as we continue in this pandemic,” Christ said.

“And then it would just be like living with the influenza,” she continued. “At that point it wouldn’t be a public health emergency anymore.”

Christ’s comments came as she was being questioned in a hearing in Maricopa County Superior Court by Ilan Wurman.

He represents more than 100 owners of bars that remain unable to reopen and operate the way they used to due to the Ducey-declared emergency. And Wurman is trying to convince Judge Pamela Gates that the restrictions on bars make no sense, especially when other businesses, including restaurants that serve alcoholic beverages, are allowed to be open.

All that relates to when Christ thinks the emergency – and the restrictions on business operations, including bars imposed by Ducey – will or should go away.

“That’s hard to predict now because we learn new things every day,” she testified.

One issue in the case is how long Ducey can exercise his emergency authority.

Wurman said there are indicators. He pointed out the Department of Health Services has established “benchmarks” to determine the risk of spread of the virus.

These look at three issues: the number of cases per 100,000 residents, the percentage of tests for the virus that come back positive, and the percentage of patients showing up in hospital emergency rooms with COVID-like symptoms. Each of those can be listed as having a substantial, moderate or minimal risk of spread.

Wurman wanted to know at what point those benchmarks will get to a point when the emergency will be over.

“It’s a little bit difficult,” Christ responded.

“Those benchmarks weren’t established to determine an end to the public health emergency,” she said. “They were really established to set benchmarks for business to be able to reopen and schools to go back into session.”

That didn’t satisfy Wurman.

He told her to assume there will be no vaccine, no “therapeutic” to effectively treat the disease, and no “herd immunity” where enough people have contracted the virus, survived and now have antibodies. Given all that, Wurman asked Christ when she would be willing to recommend to Ducey that he rescind his emergency orders.

“If we were consistently at very, very low cases, if CLI (COVID-like illnesses) stayed low and the percent positivity remains low, below that 3%, we may make that recommendation,” she responded. But no promises.

“Again, it’s hard to predict,” Christ said.

Wurman pressed harder.

“If all three of the benchmarks established by your department indicated we had been at minimal transmission for eight weeks, would that be sufficient for you to recommend repeal?” he asked.

She never responded after attorneys for the state objected, saying she had already answered the question.

One thing Christ did say is that the emergency declaration really isn’t primarily about preventing people from getting sick and wiping out the disease.

“The public health emergency is really protecting our health care system, making sure we keep as few people from getting sick or dying and having access to those resources than it is just eradicating the disease,” she said.

Christ did concede that she could not say whether a single case of coronavirus had been traced to a bar in Arizona. But she said that’s not because none has happened.

“I’m not privy to the contact tracing investigation findings,” Christ said.

But the health director said she remains convinced that the risk of spread is higher at bars than at other businesses.

Some of it, she said, has to do with lack of ventilation indoors.

“There are ways that that can be increased,” Christ said. “But alcohol does tend to affect one’s ability to physically distance and make good decisions.”

And then there’s the environment.

“They tend to have music,” she explained.

“It requires people to speak louder, projecting more droplets into the air, putting more virus,” Christ said. “It also requires people to lean in and get closer to individuals when they are talking because it’s going to be loud.”

Bars can’t convince Supreme Court to hear case on reopening

Rebuffed by the Arizona Supreme Court, more than 100 bar owners are now taking their claims against Gov. Doug Ducey to a trial judge.

In a brief order, Chief Justice Robert Brutinel said the bar owners “did not provide a compelling reason as to why this matter could not be initiated in a lower court.” Anyway, Brutinel said, having the case go to a trial court will flesh out the allegations by the bar owners that the action by the governor shutting them down violated their constitutional rights and denied them legally required due process.

In some ways the ruling is not a surprise. It is highly unusual for the state’s high court to consider any issue that has not already been through the normal trial process.

But the ruling also does not end the dispute.

Attorney Ilan Wurman already has filed a new lawsuit in Maricopa County Superior Court alleging that Ducey does not have the constitutional authority to shut down bars – or any other business for that matter.

In sending the case to a lower court, that raises the possibility that the Ducey-declared emergency could be over and business back to normal by the time there is a trial and then the likely appeals. Wurman said that is why he is asking Judge James Smith to grant a preliminary injunction to allow the bars to reopen while the case proceeds.

But even if that doesn’t happen, Wurman told Capitol Media Services that the case still needs to proceed. He said Arizona courts need to spell out clearly what powers not only this governor but future governors have over businesses the next time there’s an emergency.

“What happens when schools are back in session in September and UofA and ASU have been in session for a month and the (COVID infection) numbers go back up?” he asked.

“Who are the first people going to be the scapegoats?” Wurman continued. “The bars.”

And the new lawsuit has something not in the original version.

He is asking Smith to declare that Ducey, in shuttering the establishments, effectively took their property. And that, Wurman said, would require the state to pay compensation to the bar owners for what they lost while they were forced to close.

“But our objective is to get open,” he said.

At least part of Wurman’s arguments rest on his claim that the governor has unfairly and illegally singled out his clients for discriminatory treatment.

He points out that there are many different kinds of establishments that can legally serve alcoholic beverages. That includes places licensed as restaurants.

By contrast, his clients are licensed as bars.

The advantage is that they do not need to meet the same requirement as restaurants that at least 40% of their sales come from food. But Wurman said that, for all intents and purposes, the activities at restaurants, which can remain open – albeit at reduced capacity – are no different from those at places licensed as bars.

In fact, he said, some bars have spacious outdoor patios, table service and no dancing while some restaurants “often have cramped spaces, loud music, dancing, and no outdoor seating.”

No date has been set for a hearing.

Bars take Ducey to court

Bar owners from around the state are asking the Arizona Supreme Court to rule that Gov. Doug Ducey does not have the constitutional authority to shut them – or any other business – down.

Attorney Ilan Wurman is not contending that there is not an emergency due to the COVID-19 outbreak.

But Wurman, an associate professor at Arizona State University, said the law that gives Ducey the unilateral power to do things like close down certain businesses “unconstitutionally delegates the legislative power of this state to the governor. And he wants the justices to not only void the law giving the governor those powers but also declare that any orders Ducey already has made under that law are illegal and cannot be enforced.

The outcome of the legal fight would affect not just the owners of the 20 bars around the state that are challenging his authority over them but every other kind of business that Ducey has ordered shuttered or whose operations he has directed be curtailed. And it also could affect the governor’s future ability to impose a new stay-at-home order as well as any directives he issues about when schools can and cannot open.

There was no immediate response from the Governor’s Office.

Central to the case is the law that both allows the governor to declare an emergency and then gives him “the right to exercise … all police power vested in the state by the Constitution and laws of this state” to deal with that emergency.

“Petitioners have suffered great harm from being unable to operate their businesses in pursuit of their lawful occupations and ordinary callings,” Wurman told the justices. “They have no idea when they will be able to reopen.”

The problem with the governor’s action, he said, is that the law approved by the Legislature which gave him that power is unconstitutional.

“The Legislature may not delegate its legislative power to another,” Wurman said. “Under the doctrine of ‘separation of powers’ the Legislature alone possess lawmaking power,” a power he said lawmakers “cannot completely delegate … to any other body.”

At best, he said, lawmakers can allow another branch of government “to fill in the details of legislation already enacted.”

Here, Wurman said, the Legislature went far beyond that in giving Ducey complete police powers.

“The ‘police power’ of a state is, in effect, its legislative power: its power of the health, safety, welfare, and morals of the people,” he wrote.

The law that Ducey is using, Wurman said, is “a naked delegation of the state’s legislative power to the governor and is therefore unconstitutional.

“There are no standards whatsoever,” he said. “There is no sufficient basic standard, no definite policy and rule of action which will serve as a guide for the governor.”

And what that means, Wurman told the court, is that the law gives Ducey unfettered authority.

“Can he permit only takeout? If he wants to,” he said.

“Can he leave restaurants open but close down bars and gyms? If he wants to,” Wurman continued. “Can he close down bars but not gyms, or gyms but not bars? If he wants to.”

And what that also means, he said, is that Ducey could order students to attend school only every third day.

“There is, in short, literally no standard by which to judge the governor’s actions under the statute, and it therefore must violate the nondelegation doctrine,” Wurman said.

He said none of his clients are arguing that government cannot close down their businesses in “appropriate circumstances.”

“The question is who within our constitutional system of government has that power,” Wurman said.

“That person is not the governor,” he continued. “The state legislators have that power.” Wurman said they cannot constitutionally delegate to the governor.

Wurman acknowledged that the laws allowing the governor to declare an emergency also give the Legislature the authority, with a simple majority vote of each chamber, to declare it over. But he said that does not overcome the legal issue of lawmakers having given the chief executive unlimited police powers in the first place.

He also told the court that declaring the state’s general emergency powers statute unconstitutional would not leave Ducey or future governors without the power to deal with emergencies, including the pandemic. He pointed out – and is not challenging – various other laws giving governors powers to deal with public health emergencies, laws that even allow a governor or the health department to quarantine people without court order, require vaccinations and even permit the use of the National Guard to enforce those orders.

But those powers, Wurman said, are limited.

“Nothing in (health law) authorizes the governor to close down petitioners’ businesses,” he said.

Wurman conceded that there is a section law that allows cities and counties – but not the governor – to close any business during a state of emergency. But even here, he said, that is only as necessary “to preserve the peace and order of the city, town or unincorporated areas of the county.”

The lawsuit also raises an equal protection argument, saying Ducey cannot decide that some businesses are permissible while others are not.

“If the purpose of the governor’s order is to mitigate the spread of a pandemic by ensuring that businesses follow particular sanitary measures, then the governor must permit all businesses to operate who can meet those standards,” he wrote.

List of Petitioners and their business establishments:

Michael Beaver

The Beaver Bar

11801 N. 19th Avenue

Phoenix, Az. 85029

Jacquelyn Bendig

Chad Newberry

1881 Spirits

144 S Montezuma St

Prescott, AZ 86303

Matt Brassard

Matt’s Saloon

112 S. Montezuma St

Prescott, AZ 86303

Craig Denny

Pudge and Asti’s Sports Grill

721 6th St

Prescott, AZ 86301

Patricia Dion

Louie Fernandez

Douglas Landreth

Jester’s Sports Lounge

877 Hancock Rd

Bullhead City, AZ 86442

Mistie Green

Larry’s Cocktails

20027 N Cave Creek RD

Phoenix, AZ 85024

Darel & Tamie Harrison

Music Box Lounge

6951 E 22nd Street

Tucson, AZ 85710

Brad Henrich

Shady’s Fine Ale and Cocktails

2701 E Indian School Rd

Phoenix, AZ 85016

Charles Jenkins

Office Sports Bar

330 S. Gilbert Rd. #3

Mesa, AZ 85204

Ian Juul

Mooney’s Irish Pub

671 AZ-179

Sedona, AZ 86336

Colleen Kendall

The Windsock, LLC

1836 Timber Cove Ln

Prescott, AZ 86305

Alan Kowalski

Clicks Billiards

3325 N 1st Ave. #100

Tucson, AZ 85719

Josh Makrauer

Jersey Lilly Saloon

116 S Montezuma St

Prescott, AZ 86303

Bruce Reid

Barefoot Bob’s Billiards

8367 E Pecos Dr Suite 2

Prescott Valley, AZ 86314

Russell Roberts

Lyzzard’s Lounge

120 N Cortez St.

Prescott, AZ 86301

Wes & Rebecca Schemmer

Vino di Sedona,

2575 West SR 89A

Sedona, AZ 86336

Peter Sciacca

QuartHaus

201 S Washington St

Chandler, AZ 85225

Sheri Shaw

The Back Alley Wine Bar

156 S Montezuma St.

Prescott, AZ 86303

Heather and Justin Ward

Monkey Bar

1120 S Wilmot Rd

Tucson, AZ 85711

Cheri Wells

Aint Nicks Tavern

6840 N. 27th Ave

Phoenix, AZ 85017

Bill would give restaurants unfair advantage over bars

Few Arizona industries suffered more during the COVID-19 pandemic than bars, which faced severe operating restrictions, drastically reduced business and a backlash from public officials.

In addition, bars faced closures at the instruction of an executive order from the state. Since those first devastating days in March through the fall, bars and many businesses around the state struggled to stay afloat.

With Covid on its way to eradication thanks to a flurry of approved vaccines, bars now face another existential threat. Proposed legislation gives the thousands of restaurants in the state some of the same privileges to sell alcohol to go that bars maintain.

I’ve operated Kactus Kate’s in cottonwood for 25 years. Pre-coronavirus, many of the bars across the state prospered despite some uncertain economic times. Bars have long been a place of refuge after a long day’s work or a relaxing gathering spot for friends and family.

Covid began hurting bars almost immediately. When the state shut down the economy, bars were ordered closed to help stop the spread. As spring turned to summer, Arizona began to open up and employ commonsense measures to slow the spread of the virus, such as wearing masks and staying six feet apart. At bars, we planned to reduced capacity, expand outdoor seating and encouraged social distancing among our patrons.

However, bars faced additional hurdles that other retailers and restaurants avoided. The state forced many of us to remain closed to patrons who wanted to drink and socialize. After suing the state to overturn the closure order, bars won the right to again serve patrons in a responsible way.

However, just as bars start to recover, the state is proposing to give restaurants a competitive and economic advantage.

Restaurants had been given authority during the pandemic to package alcoholic beverages to go. The theory was that in a time of economic distress with no ability to serve patrons in their dining rooms, restaurants would be able to sell alcohol along with a burger or spaghetti to go. While the law did not allow this, most people looked the other way because of the temporary nature of the pandemic.

Restaurants weathered the COVID storm and the industry remains vibrant and growing. New eateries pop up weekly to accommodate a public desirous of new options.

Some in the Legislature want to give restaurants the permanent authority to sell liquor to go, a right that exclusively belong to bars and retail establishments like convenience stores and grocery stores. In some parts of the state, bars earn a substantial amount of revenue selling package liquor.

To be sure, bars pay a premium for this right. A license to open a bar costs at least $100,000 from the state, whereas a restaurant pays just a few thousand dollars to serve liquor onsite. HB2773 proposes to give restaurants a significant competitive advantage, paying just $1500 for rights that a bar must shell out at least $100,000.

It’s obviously neither fair nor right to create a permanent solution to this temporary problem. Covid will be a thing of the past as the vaccines become more available. To change state law and provide a significant competitive advantage to an industry that is now flourishing is just wrong. The bar owners around the state hope the Legislature rejects this unfair competitive advantage in HB2773.

Kate Woods owns Kactus Kate’s in Cottonwood.

Booze to go gets House approval

Restaurants will be able to sell mixed drinks to-go under a law the Arizona House passed overwhelmingly Monday.

The House voted 50-9 to pass HB2773 on final reading, which lets bars sell cocktails for off-premises consumption and lets restaurants apply for permits to do the same. Now that the House has concurred with the Senate’s amendments, it heads to Gov. Doug Ducey’s desk for his signature.

Bar and liquor store owners had originally opposed the bill, saying it is unfair to let restaurants, which have far less expensive liquor licenses than them, sell cocktails to go. As amended, the bill would let restaurants lease to-go cocktail permits from restaurants and liquor stores through the end of 2025. After that, restaurants could apply for such permits in their own right.

“As I committed to people, I continued to negotiate along with a large group, a bipartisan group, and the bars are now in favor and groceries are now neutral because of the changes that we made,” said Rep. Jeff Weninger, R-Chandler, the bill’s sponsor.

Rep. Aaron Lieberman, D-Paradise Valley, said during Monday’s House Democratic caucus that the bill as amended would let bars reap some of the financial benefits of letting restaurants sell to-go cocktails over the next few years through the leasing system. He said allowing to-go sales is both important for restaurants and popular with consumers and with constituents he has heard from.

“As I understand it, this has been a really good stakeholder process to get to this point,” he said.

Ducey let restaurants start selling cocktails to-go as a way to help them stay afloat at the beginning of the Covid pandemic despite the other restrictions placed upon them. A group of bars sued, and a Maricopa County judge sided with them in November. If Ducey signs HB2773, restaurants that want to sell cocktails to-go will once again be able to under the newly established licensing rules.

Four Democrats and five Republicans voted against the bill in the House. It had passed the Senate 22-8, also with bipartisan majorities but drawing the handful of “No” votes from both parties.

Cocktails to go for restaurants may be back

Al McCarthy, owner of Duke’s Sports Bar and Grill in Scottsdale, opposes a measure to permanently allow both restaurants and bars to sell mixed cocktails to go, but the bill’s sponsor is working on a compromise that would preserve the high value of licenses for bars and liquor stores, who pay more for their licenses than restaurants. PHOTO BY JULIA SHUMWAY/ARIZONA CAPITOL TIMES

Lawmakers say they’re close to reaching an agreement that would let restaurants resume selling cocktails to go without costing bar owners who paid dearly for the privilege to sell alcohol to go.

Historically, bars, which hold Series 6 liquor licenses, and liquor stores, which hold Series 9 licenses, have been able to sell alcohol to go in sealed containers. Restaurants, with far cheaper Series 12 licenses, can sell alcohol on site but can’t let their patrons take it home.

That started to change during the pandemic when Gov. Doug Ducey closed bars and restaurants but granted restaurants the ability to sell beer, wine and cocktails to customers picking up takeout orders. Bars protested and eventually sued, winning in court in September and ending the short-lived – but popular among consumers – practice of ordering to-go margaritas and mimosas.

Rep. Jeff Weninger, R-Chandler, sought to permanently allow both restaurants and bars to sell mixed cocktails to go. He and seatmate Sen. J.D. Mesnard, R-Chandler, have reached a conceptual agreement between bars and restaurants, but they’re still ironing out technical details, Mesnard said.

“For every class 6 and class 9, there would be an equivalent license for to-go cocktails,” Mesnard said. “It’s essentially a state-facilitated leasing program.”

The tentative deal, which he eventually plans to present as a floor amendment, is meant to preserve the high value of Series 6 and 9 licenses. They’re limited based on population and easily cost upwards of six figures – just seven each were available in Maricopa County in 2020, with a fair market value of $99,900 for Series 6 licenses and $272,800 for Series 9, according to the Arizona Department of Liquor. Restaurants, on the other hand, pay a $2,000 one-time fee and $585 to renewal.

Bar owners can sell their Series 6 licenses when they decide to get out of the industry, and it’s effectively the only equity they have, said Al McCarthy, owner of Duke’s Sports Bar and Grill in Scottsdale. He and his daughter spent $85,000 on theirs when they opened the bar 23 years ago, and they count on being able to sell it if they need to.

“Tables and chairs are worth pennies, it’s like trying to sell a used couch or a used bed,” he said. “So the only thing you have left is how much business you do, how much profit you make and the liquor license. Worst case scenario, we can get $100,000 for the liquor license.”

McCarthy’s bar sells enough food that he could qualify for a cheaper Series 12 restaurant license, but he said he chose the Series 6 to have options. He doesn’t sell alcohol to go – he asked his insurance company about it when he had to shut down during the pandemic and learned that it would add thousands more to what he already pays in liquor liability insurance – but he said he didn’t begrudge restaurants who took the option when Ducey offered it at the start of the pandemic.

The idea of making that option permanent – with a law that likely wouldn’t take effect until August, well after all Arizonans have access to Covid vaccines – didn’t sit right with McCarthy.

“It’s gonna make something that was meant to be a temporary fix to help people into a permanent thing that just dilutes the value of a 6 license,” he said. “There’s no need to buy a 6 license if you can buy a 12, spend $1,800 a year and have a drive-in window with to-go drinks.”

Sen. Tony Navarrete, D-Phoenix, voted Wenninger’s original measure out of committee with reservations on March 24 and said he is still concerned about making sure bar owners and grocers who purchased licenses for a significant price are made whole. He’s not sure that the bill is quite there yet, he said, but he looked forward to continuing conversations.

“I think there can be some middle ground,” he said. “Does it happen this session? I’m not sure. Will it happen at some point? Absolutely.”

Court says Ducey can’t allow restaurants to sell booze to go

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.

Court sides with governor in dispute over bars closure

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.

Ducey tells court why restaurants get special treatment over bars

Gov. Doug Ducey is justifying his directive to liquor investigators and police to ignore violations of some state laws by restaurants because they need the money from the otherwise illegal sales they are allowed to make.

In new court filings, attorneys for the governor do not dispute that Arizona law prohibits restaurants from selling alcoholic beverages to go. That right is reserved for holders of other types of liquor licenses, including grocery stores and bars.

And they acknowledge that Ducey in March specifically directed that agents of the Department of Liquor Licenses and Control “shall not enforce the provisions of the Series 12 (restaurant) liquor license that prohibit the sale by restaurants of beer, wine and spirituous liquor off premises.” In fact, the governor’s order also keeps police from enforcing those laws.

Attorney Ilan Wurman who is suing Ducey on behalf of more than 100 bar owners, said that’s not fair.

“Giving the restaurants the off-sale privilege and letting restaurants stay open, all while closing down bars seems to be a clear act of economic favoritism,” he said.

“It’s a powerful industry,” Wurman said. “And a lot of them give him money.”

But Brett Johnson, the private attorney who Ducey hired to defend all of his executive orders, said the governor was acting within his emergency powers.

What Johnson is arguing is that giving restaurants the “privilege” to sell beer, wine and liquor out the door “qualifies as a recovery and response activity because it aids restaurants.”

That, said the attorney, is justified because they were previously closed for in-house dining.

They have since been allowed to serve patrons. But Johnson said the restaurants still need the financial help because they remain “subject to capacity restrictions.”

Ducey press aide Patrick Ptak defended the governor’s decision to block enforcement of the laws that prohibit restaurants from making off-site sales of alcoholic beverages. He called it one of many “tough decisions” his boss had to make during the pandemic.

“This has been a way for many establishments to maintain their operations safely and responsibly while continuing to prioritize public health,” Ptak said. And he said Ducey has “broad authority” relating to the enforcement — or non-enforcement — of laws.

Wurman said Ptak is partly right.

Doug Ducey

He said the laws do give Ducey the power to suspend laws dealing with things directly related to the pandemic, like regulation of doctors, hospitals and emergency medical technicians. The governor, in fact, already has done that, expanding the scope of practice allowed under state law to certain medical providers.

But Wurman said there is no basis for Ducey’s argument that he has pretty much unfettered ability to do anything as long as he says it involves “response and recovery” to the underlying emergency caused by COVID-19.

That, he said, would include “anything that alleviates secondary economic, political, cultural, social damage or whatever.” And Wurman said that is unconstitutional.

“It gives him essentially unlimited power,” he said.

What makes all this relevant to Wurman’s clients is that the governor initially closed both bars and restaurants. Yet Ducey unilaterally took away the one legal advantage the bars had over the restaurants: the ability to sell alcoholic beverages to go even if they could not have customers.

Meanwhile, restaurants have been reopened while bars have not. But the governor continues to allow them to violate state liquor laws and sell beer, wine and liquor out the door.

There is reason to believe that Maricopa County Superior Court Judge Pamela Gates, who is hearing the legal arguments, may side with Wurman and against the governor on the question of whether he can simply direct that certain state liquor laws be ignored.

She ruled earlier this month that the governor did nothing wrong in shutting down bars while continuing to allow operation of restaurants with liquor licenses. Gates said Ducey’s orders “are rationally related to expert data and guidance on minimizing the spread of COVID-19 in our community.”

But Gates said it appears to be quite something else for the governor to direct liquor investigators and police to ignore clear state laws which say that those with Series 12 licenses — meaning restaurants — cannot sell alcoholic beverages to go.

“The court finds the executive order banning enforcement of a Series 12 licensee violation of off-premises sales of spirituous liquors impermissibly stretches the governor power he is granted under state laws, the judge said. Said another way, the court fails to find that the enforcement ban against Series 12 licenses in (the executive order) effectuates the purposes of (the laws on emergency powers).”

Gates, however, didn’t overturn Ducey’s order, setting the stage for more legal filings.

Instead she wanted to hear more arguments. And that, in turn, led to Johnson’s arguments that the financial health of the restaurant industry justifies the governor’s actions.

The governor’s attorney has another justification for Ducey’s directive. He said that closing bars for in-person operation while giving off-sale privileges to restaurants “encourages individuals to stay home, reducing the risk of COVID-19 transmission.”

Johnson provided no specifics.

Wurman, however, sees the action through a different lens: politics and campaign donations.

“That doesn’t mean it’s pay-to-play,” he said.

“And it’s not corrupt,” Wurman said. “But it’s favoritism.”

Ptak did not answer questions about who from the restaurant industry lobbied Ducey for the right to ignore state laws about out-the-door sales of alcoholic beverages.

Separately on Monday, attorney Ilan Wurman filed a $12.5 million claim against the state on behalf of the more than 100 shuttered bars he represents.

The number, Wurman said, is an estimate of 70% of what the bars have lost in business from April through the end of August. He said the other 30% is probably what the bars would have lost anyway due to the pandemic.

Wurman contends if the state wants to close them it has the legal responsibility to make up at least some of their lost profits.

Judge says restaurants’ to go liquor sales illegal

A little-noticed provision in a court ruling this week on bars and alcohol sales could end up curtailing business at some restaurants and force them to close.

In her decision Tuesday, Maricopa County Superior Court Judge Pamela Gates upheld the actions by Gov. Doug Ducey in keeping bars closed while allowing restaurants to remain open and continue to serve alcohol. She said that was within his authority to protect public health.

But Gates did not look so kindly on a decision by the governor to tell his own Department of Liquor Licenses and Control to look the other way when restaurants decided to sell beer, wine and liquor out the front door, a move that was designed to help the financially struggling businesses.

That directive, the judge said, hardly fits within the actions Ducey is permitted to take in emergencies. And she said Ducey’s decision to suspend enforcement of a liquor law “impermissibly stretches” the governor’s power.

What remains to be seen is whether the governor will rescind that part of his order.

“We are reviewing the ruling,” said Ducey press aide Patrick Ptak.

But any move in that direction will get opposition from the Arizona Restaurant Association.

In March, Ducey used the emergency powers he had to close all bars and restaurants to patrons. But he agreed to pleas from the restaurant owners to allow them to continue to sell beer, wine and alcoholic beverages to customers who also were getting food to go.

Only thing is, such off-premises sales are illegal under state law. So Ducey instructed agents for the liquor department to simply turn a blind eye to the violations.

Dan Bogert, chief operating officer of the restaurant group, said that move provided a “key lifeline” to restaurants.

“They are helping to keep those places in business and employees employed,” he said.

Since that time, Ducey has loosened the restrictions — at least on restaurants. They can provide dine-in services, but only at 50% of capacity. Bars remain closed unless they agree to operate under additional restrictions.

But the directive to liquor agents to ignore the violations by restaurants of law banning off-premises sales remains.

Ptak said the directive was — and is — justified, calling it one of the “tough decisions” that the governor has had to make.

“This has been a way for many establishments to maintain their operations while continuing to prioritize public health,” he said.

Gates, in her ruling, gave the governor a lot of leeway in deciding the steps he needed to take using his emergency powers to protect public health. That’s why she left undisturbed his orders shutting bars.

“A clear purpose of (the law) is to grant to the governor emergency powers and the authority to establish an agency plan for and coordinate the state’s response to natural or manmade disasters and to alleviate extreme peril to persons or property,” she wrote.

But telling liquor agents to ignore the law, Gates said, doesn’t seem to fit.

“The court finds the executive order banning enforcement of a Series 12 licensee’s violation of off-premises sales of spirituous liquors impermissibly stretches the governor’s power” he is granted under state laws, the judge said. “Said another way, the court fails to find that the enforcement ban against Series 12 licenses in (the executive order) effectuates the purposes of (the laws on emergency powers).”

Bogert said that restaurants still need the state to keep ignoring the violations of selling alcohol to go.. He said many remain in precarious financial condition.

He said a survey done in July, after in-house dining was again allowed, found that 40% of restaurants said they would be forced to close, permanently, within 90 days.

“And what I’m saying is that number would be higher without the to-go alcohol privilege,” Bogert said.

The only reason any of this came to the attention of Gates is the lawsuit filed by more than 100 bar owners challenging the authority of the governor to shut down their operations, especially while allowing the serving of alcohol to patrons dining at restaurants.

Attorney Ilan Wurman pointed out the only distinction is strictly legal.

Restaurants are issued a Series 12 license by the Department of Liquor Licenses and Control. They must generate at least 40% of their revenues from sales of items other than alcoholic beverage.

Bars, licensed as Series 6 for all alcohol sales or Series 7 for bar and wine sales only, have no such restriction. That is part of the reason it costs so much more to acquire a state license to operate a bar, coupled with the fact that the state issues only a limited number of bar licenses in each county.

And there’s something else: Bars — and only bars — can sell alcoholic beverages to go. Wurman said the governor’s executive orders only added insult to injury, forcing the bars to close while at the same time giving the restaurants they normally compete with one key edge they had.

More to the point, Wurman said there’s nothing in the governor’s executive powers that entitle him to simply suspend enforcement of the ban on off-premises sales from restaurants.

Legally speaking, nothing in Gates’ Tuesday ruling requires state liquor authorities to immediately go out and start enforcing the law. That remains for a future hearing.

But she has now put the governor on notice that she is likely to issue a final order saying he has been violating the law and ordering him to stop if he hasn’t done so already.

Judge: Ducey not in contempt of court

A judge refused late Monday to find Gov. Doug Ducey in contempt.

In a six-page order, Maricopa County Superior Court Judge Timothy Thomason found various problems with the process set up by the governor’s Department of Health Services to allow gyms and fitness centers to reopen in counties where the risk of COVID-19 remains substantial. He agreed with Joel Sannes, the attorney for Mountainside Fitness, that these kinds of operations are not told what will or will not satisfy the state.

“The lack of standards is a bit troubling,” the judge wrote.

But Thomason also concluded that Ducey has technically complied with his earlier order that requires there be a waiver process of some sort. In fact, he pointed out, there are two businesses — EoS Fitness and Training for Warriors-Estrella — that have managed to navigate the procedures.

“Mountainside has not even given the process a chance to work,” the judge said.

Monday’s ruling may not end the legal battle. It could be just the latest in what has become a months’ long fight between not just Mountainside but also other businesses — and not just fitness centers — to once again open their doors.

The latest comes after Thomason earlier this month ordered Ducey to come up with a system to tell businesses what they need to do to reopen.

State Health Director Cara Christ responded with a set of metrics, essentially telling gyms and fitness centers they can open their doors only when the spread of COVID-19 is no longer “substantial.” But so far that applies to only Yavapai and Cochise counties.

Even then, they would have to limit attendance to no more than 25% of capacity.

But under orders from Thomason, Christ said other businesses can apply to reopen even in those other 13 counties if they can show their operations would not endanger public health.

But Sannes pointed out that they were not told what that would take. So he asked Thomason to hold the governor in contempt.

Thomason said Sannes is correct that Christ set no standards to get those waivers.

“Fitness centers applying to reopen would have no idea what they are expected to do,” the judge wrote.

“In essence, they are being asked to meet a goal they know nothing about,” he continued. “The fitness centers are told they need to explain what additional measure they are taking to operate safely, but also told nothing about what level of precautions is necessary to satisfy ADHS.”

Still, Thomason said, the process that the state set up for businesses to petition for relief does satisfy his original order.

He said that if the health department does not find a business has submitted a satisfactory plan, there is an “informal settlement process … that can be used to ‘iron out’ an acceptable plan.” And that process, the judge said, is interactive “and does provide fitness centers a reasonable opportunity to be heard.”

Documents obtained by Capitol Media Services show what EoS did is agree to limit occupancy to 10 percent, require electronic reservations for all clients, require masks, keep saunas and steam rooms closed and pause group activities like basketball.

But it’s not just EoS that sought a waiver from the rules that now keep certain businesses closed because they’re located in areas of substantial risk of COVID-19 spread.

Johnson indicated in his arguments that 258 fitness centers have applied to reopen out of about 900 statewide, with EoS and Training for Warriors the only two which had been approved. There also are 95 applications by businesses licensed as bars to be allowed to bring customers inside, and five from movie theaters.

Four businesses have been denied.

Johnson argued to the judge that it makes no sense for Mountainside to try to hold the governor in contempt because it does not like how the health department might handle its application.

“If you don’t get a driver’s license, you don’t sue the governor,” Johnson said. “You go after DMV.”

And his defense of the governor was even more basic.

“To say the governor is somehow subject to contempt for everything he and his administration is doing is quite honestly offensive,” Johnson said. He also said there is a remedy if Mountainside wants to know what Christ found acceptable by EoS: file a public records request.

The businesses denied reopening are:

– Fourth Avenue Gym, Foothills location;

– Achieve Strength and Fitness;

– Brennan’s Pub & Grub;

– Rockabilly Grill.

State health officials say each of these businesses have an opportunity to request an informal settlement conference with the department.

State gives bars green light to open in 9 counties

As of right now, bars in nine of the state’s 15 counties can reopen.

But don’t expect them to look and operate the way they did before the governor ordered them closed in March.

No dancing.

No karaoke.

No darts or pool.

And forget about wandering around in hopes of finding someone with whom to hook up.

Put simply, they have to operate more like a restaurant, complete with food. And the number of customers is limited to just half normal capacity.

The nine counties on Thursday all have achieved at least “moderate” status as far as the spread of COVID-19. And that permits not just bars but also gyms, fitness centers, movie theaters and water parks to reopen.

Only thing is, they have to agree to a laundry list of restrictions as state health officials say there still is a risk from the coronavirus. So for each of these businesses, the mission now is finding ways to open with limited capacity and limited activities and still make a living.

The counties at moderate are Apache, Cochise, Coconino, La Paz, Maricopa, Navajo, Pima and Yavapai.

And the infection rates in Greenlee County are so low that the Arizona Department of Health Services says they have achieved “minimal spread” status. That will give businesses there even more flexibility.

Pinal County did not make the cut as expected. State Health Director Cara Christ said a new set of test results received late Wednesday kept it in the category of “substantial” risk of spread.

Christ acknowledged that test results from inmates are included in the county’s tallies. But she doubted that these infections are what has kept the county from moving into the “moderate” category.

“They’ve had a pretty steady rate over the last three weeks,” she told Capitol Media Services, with no spike.

“My guess is that final bump was not related to the prisons,” Christ said. “It was likely related to something in the community.”

But Rep. Bret Roberts, R-Maricopa, is questioning why inmates who test positive are even being considered.

He said counting positive tests among staff make sense.

“They’re out in the community,” Roberts said. But he said inmates are not, meaning they’re not able to spread the disease to other Pinal County residents.

Christ, however, said it’s not that simple.

“COVID is highly contagious,” she said.

“So if it is at a prison, the correctional officers are at-risk of getting it and taking it out into the community and bringing it back into the prisons, especially if you’re going with things like restaurants and bars and gyms where they may go when they are off,” Christ continued. “There are people that work in the prisons that do things in the community.”

It’s not just bars in these nine counties where bars will again be allowed to operate, albeit in a scaled-back fashion.

Gyms and fitness centers can also reopen their doors to half of the normal capacity, with requirements for other restrictions. Ditto movie theaters, water parks and tubing operations.

But traditional bars and nightclubs won’t be able to reopen as they used to operate until the county rate for positive tests comes back at 3%.

Still, there are current options for bars that can reconfigure how they do business.

The list of dos and don’ts is extensive. And it goes beyond the ban on dancing, singing and games.

It starts when people arrive.

The state wants at least 10 square feet for each person in the waiting area, with anyone in the queue required to mask up. Overflow has to go outside, even to the point of would-be customers waiting in their cars.

Customers can choose between sitting at the bar or a table with the obligatory six-foot distance between parties. But once someone is seated, that’s it — except to go to the bathroom. And that, in turn, requires putting back on the mask.

Salad bars and buffets where people can serve themselves are forbidden.

And customers are unlikely to find a bottle of ketchup on the table. It’s not a gourmet thing. It’s just that the health department wants single-service helpings, whether in packets or small bowls.

Even the experience of paying is likely to be altered, with staff required to wipe down any pens, touchpads or other hard surfaces between each use.

Gyms and fitness centers present a different set of hurdles. Here, too, it starts at the door with a requirement for customers to submit to temperature checks or at least be screened for COVID-19 symptoms.

They can operate only at 25 percent capacity except in Greenlee County where 50 percent is OK.

Masks are required at all times, along with physical distancing of at least six feet.

There can be classes for Pilates, Zumba and other fitness exercises. But expect to find lines on the floor to demonstrate where people can safely stand.

Theaters can fill up to half their seats — but only if they can do so by limiting groups to no more than 10, separating groups by at least six feet, and keeping every other row empty.

Customers should count on having to wear a mask other than while eating or drinking at a seat. And look for more time between shows to avoid crowds and allow better air circulation.

Water parks also can operate at 50 percent capacity, with distancing between deck chairs and other actions to keep participants apart.

State sets bar for businesses to reopen

Gov. Doug Ducey and the Department of Health Services released benchmarks today on how bars, gyms, movie theaters and other businesses can safely reopen.

The guidelines piggybacked on the state’s guidance for schools released last week. Like the guidelines for schools, reopening is largely based on counties’ virus statistics, which are broken into three groups: Minimal spread, moderate spread and substantial spread.

The plan doesn’t allow for any reopenings until counties have reached at least a moderate spread — except it includes one huge caveat: Businesses can apply for a waiver even if their county is overwhelmed with COVID-19.

Currently, most counties have a substantial spread, though Yavapai and Coconino counties qualify for the moderate spread category because they meet all three reopening requirements. Pima County is close, Dr. Cara Christ, the state’s health director, said. They have reached the positivity rate measure for one week, but two consecutive weeks is the requirement.

Doug Ducey

Before reopening, businesses must first attest they have developed and implemented best practice policies from Centers for Disease Control and Prevention, such as enforcing social distancing.

Substantial spread means counties are seeing a more than 10 percent positivity rate, more than 10 percent of hospital cases showing COVID-like illnesses and more than 100 cases per 100,000 residents. Moderate spread is between 5 and 10 percent positivity rate, 5 to 10 percent of hospital cases showing COVID-like illnesses, and 10 to 100 cases per 100,000 residents. Minimal spread is less than 5 percent positivity rate, less than 5 percent of hospital cases showing COVID-like illnesses and fewer than 10 cases per 100,000 residents. Like schools, the data used to reopen business will be on a 12-day lag, and will also have its own page on the Department of Health Services dashboard.

One major difference between today’s announcement and the one for schools is schools put in a 7% threshold for moderate spread to be met rather than just meeting a 5-10% measure. So some of these counties do not meet the school requirement, but Yavapai at 7.8% percent positivity rate for the week of July 19 and 9.4% positivity rate for the week of July 12 and Coconino at 9.6% meet the requirement for businesses. Maricopa County is not close yet, still sitting at 13.2% positivity and 16.9% the week prior.

Gyms can reopen at 25 percent capacity once a county has reached moderate spread, though the guidelines still require symptom screening, face masks and other preventative measures. Movie theaters, waterparks and tubing can resume in counties with moderate spread, with protective measures like face masks for everyone and symptom screening for staff. Bars and nightclubs are slightly more complicated.

Bars and nightclubs with food permits can implement a plan to operate as dine-in restaurants, such as having hostesses seat people at a table for dine-in services, and reopen at 50 percent capacity when their county reaches moderate spread. Even if counties reach the minimal spread category, they must remain at 50 percent capacity until positivity rates drop below 3 percent.

Bars and nightclubs that don’t convert to a restaurant style, must remain fully closed until positivity rates drop below 3 percent in their county, then are allowed to reopen at 50 percent capacity with additional preventative measures in place.

For businesses that go through the attestation process and are denied by the Department of Health Services, they can fight the decision through a multi-step process that can eventually go to the Superior Court for a final decision. The Department of Health Services dashboard will update the data for each county every Thursday.

Last week Maricopa County Superior Court Judge Timothy Thomason ruled that the state had to provide gyms and fitness centers an opportunity to show they could operate safely. What was announced Monday may be legally sufficient.

In issuing his order last week, Thomason gave wide berth to the decisions being made by Ducey and state Health Director Cara Christ.

“It is not the function of the judiciary to second-guess policy decisions on matters of public safety,” the judge wrote. But he said it is his role to ensure that the constitutional rights of business owners are protected.

“The injuries to these businesses have to be staggering,” Thomason wrote.

“The order only gives the gyms a chance to apply for reopening,” he continued. “It does not order that any fitness center be opened or that anyone be immediately put back to work.”

State’s universities side with Ducey on bar closures

The state university system is defending the broad executive powers being exercised by Gov. Doug Ducey arguing it will keep their students out of bars — at least for the time being.

“Bars such as those surrounding the universities are breeding grounds for COVID-19,” wrote a team of attorneys from two private law firms representing the Arizona Board of Regents.

The filing at the Arizona Supreme Court comes as the governor seeks to defend himself from a lawsuit filed by dozens of bar owners challenging his ability to use executive orders to close businesses, including their own. Their attorney, Ilan Wurman, charges that the law giving Ducey that authority is itself unconstitutional.

Ducey already has filed his own legal papers arguing that there’s nothing legally wrong with the statute.

And the governor has picked up support from other groups who have filed their own legal arguments telling the justices why they should throw out the challenge. These include state and local chambers of commerce, organizations representing hospitals, doctors and nurses, and Maricopa County.

The governor’s Department of Health Services even hired an outside attorney so Cara Christ, the agency’s director, could give the state’s high court her own arguments about the nature of COVID-19 and how guidance from federal, state and local health officials “supports (if not compels) Gov. Ducey’s decision to temporarily close bars in Arizona.”

In urging the justices to spurn the legal challenge, the attorneys for the universities detailed all the things they are doing to protect students. That includes promoting social distancing by offering more classes online, spreading out students attending courses in person, and moving things like counseling and academic advising online.

In fact, University of Arizona President Robert C. Robbins on Thursday warned students they could face suspension if they violate health safety rules during the pandemic. Those comments were specifically aimed at social media posts claiming intentions to have parties once classes resume Aug. 24.

The attorneys for the regents told the justices that allowing bars to reopen would undermine all those efforts, calling them “particularly risky.”

“They allow (and even invite) an environment that, in most respects, is exactly the opposite of the safe environment that public health officials recommend — and that the universities are diligently working to create,” the legal brief states.

Put simply, the lawyers say, the bars encourage “unhealthy personal behaviors.”

Consider the issue of masks.

“It is virtually impossible to wear a mask when drinking,” they argue.

“As people become intoxicated, they tend to talk louder, tell jokes or sing, which spreads more droplets,” the attorneys said, quoting newspaper articles. “In many bars, loud music or noisy crowds force you to move closer to hear.”

And then there’s the argument that alcohol compounds the risk.

“Alcohol of course can disinhibit people and perhaps promote even more breaches of social distance and sharing of drinks and food,” they argue.

To drive home their point, the attorneys counted the number of bars in the zip codes of each of the three universities.

For Northern Arizona University the tally is 31. It is 44 around the main campus of Arizona State University and 56 in the four zip codes around the University of Arizona. And that, they said, is not by accident, saying that bars market to university students, providing the justices with photos of ads placed by establishments near the schools.

“Similar advertisements fill student and local newspapers, student informational pamphlets, and local tourism guides,” the attorneys told the court.

More to the point, they said there’s a definite link between colleges and bars — and why the latter seek out the former.

“According to one study, the ‘wet’ alcohol environment around campuses — including lower sale prices, more promotions, and alcohol advertising at both on- and off-premises establishments — was correlated with higher binge drinking rates on the college campuses,” the brief states.

And what of the interests of the business owners?

The lawyers say the board “sympathizes” with them and their patrons. But they said the governor’s order “merely sets reasonable limitations as a result of this global pandemic.”

Anyway, they said, the restrictions are temporary — though the governor’s latest order issued just Thursday, extends the closure indefinitely, with a promise to review it every two weeks. And the attorneys said that bars can still provide pick-up, deliver and drive-thru services.

The attorneys do address the legal question at issue, but only briefly.

In challenging Ducey’s action, Wurman said the statute giving the governor broad police powers, including closing businesses, is an unconstitutional delegation of the legislature’s own power.

So the regents are telling the justices that if they find that Wurman’s arguments have legal merit, they should not simply overrule and void Ducey’s order. Instead, they said, the court should give the legislature “an opportunity to correct that purported issue.”

That assumes, however, that lawmakers, confronted with having to debate emergency powers, would give this governor — or any governor — the same sweeping authority.

There is sentiment among some Republicans that how those powers have been used goes beyond what the legislature was thinking when they adopted the law. And they want to revisit the issue, if not immediately, then once the emergency is over.

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