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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.

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AG challenges governor’s emergency powers

From left are Doug Ducey and Mark Brnovich
From left are Doug Ducey and Mark Brnovich

The state’s top prosecutor says Gov. Doug Ducey is acting illegally in telling police to ignore restaurants violating certain state liquor laws.

In a new court filing, Attorney General Mark Brnovich said he disagrees with the bar owners suing the governor that the laws granting him emergency powers are an unconstitutional delegation of legislative powers.

“When the pandemic hit, the governor was well within his authority to declare an emergency and close down all non-essential businesses in an even-handed manner until health officials could better determine the nature of this novel virus,” he said.

But Brnovich said that’s not what happened here, with the governor deciding not only that restaurants can open but bars cannot — at least not the way they were designed — but directing state liquor agents and police to turn a blind eye to bars selling alcoholic beverages to go, something specifically prohibited by state law.

And then there’s the fact that Ducey’s emergency has been in place since March.

“It is clear that we are now in a world where the governor is picking winners and losers regarding the economic recovery from the emergency, not reacting to the emergency itself,” Solicitor General Beau Roysden wrote for Brnovich, who is his boss. “But that is a legislative function, and not within the proper scope of the emergency powers that are conferred to address the exigencies of emergencies when they first arise.”

So Brnovich wants Maricopa County Superior Court Judge Pamela Gates, who is handling the case, to interpret the emergency statute being cited by the governor as justifying his actions to be solely “conferring authority to carry out emergency functions and closely related activities, not as an indefinite grant of legislative authority.”

And Brnovich said if Ducey believes restaurants need economic relief — his stated reason for giving them an exception from the laws that now bar them from selling alcohol to go — there is an option.

“The governor can call the legislature into special session to address through legislation the secondary economic effects of the COVID-19 pandemic that his current executive order attempts to address through executive fiat,” he said.

In a prepared response, gubernatorial press aide Patrick Ptak said his boss believes that his actions are legal. But he also said Ducey had good reasons for the decisions he made.

“The pandemic has placed an enormous burden on all Arizonans, both economically and related to public health,” Ptak said. “The governor’s actions have allowed establishments to focus on public health while continuing to maintain operations safely and responsibly.”

But the governor’s own attorney conceded last month that his client was, in fact, making an economic decision in having law enforcement ignore violations of liquor laws by restaurants.

Brett Johnson, in his own legal filing, argued 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.” He said that is because they were previously closed to in-house dining.

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

The gubernatorial edict at issue specifically directs 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.” Ducey’s order also keeps police from enforcing those laws.

Ilan Wurman, representing more than 100 bar owners, says that isn’t 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.

Brnovich, in his filing, agrees that Ducey’s order giving special privileges to restaurants amounts to “discriminating in other respects against similarly situated bars.”

But he said the broader question is the scope and duration of the authority that Ducey claims he has under statutes granting him powers to act in cases of emergency.

“There are not set criteria for ending this emergency, confirming that — seven months into it — the governor has claimed for himself the indefinite power to act legislatively,” Brnovich said.

He said if the law is as broad as the governor claims, it clearly is an unconstitutional delegation by the legislature of its powers.

But rather than challenge the statutes, Brnovich told Gates there’s an easier way to resolve the dispute.

“The court should conclude as a matter of statutory interpretation that (the emergency law) provides a much more temporally constrained power that must be exercised even-handedly to address the exigencies of the emergency,” he said. And once Gates adopts that construction of the law, Brnovich said, she should rule that Ducey’s directive to allow restaurants to violate the liquor law exceeds his authority.

This isn’t the attorney general’s first public disagreement with the governor over the scope of his emergency powers. In July, Brnovich told a federal judge there may be legitimate claims that Ducey exceeded his authority in closing certain business.

That case involved claims by Xponential Fitness against the governor that he had no legal basis to re-close gyms and fitness centers in June after there was a new spike in COVID-19 cases.

Brnovich took no sides in that dispute. But he told the federal judge handling the case that the claims against Ducey “raise serious issues of first impression involving executive authority in an emergency.” And he said these “deserve close and careful consideration by the court.”

That case ended up being dismissed after that fitness center and others were allowed to reopen, albeit with limited capacity.

 

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Bar owners grill health director on end to closure

cara-christ1

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.”

Ilan Wurman
Ilan Wurman

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.”

AZ Supreme Court refuses case on lifting eviction ban

Eviction Notice Letter on Front  Door

The Arizona Supreme Court won’t overturn the order by Gov. Doug Ducey blocking residential evictions.

In a brief order October 7, the justices spurned a request by the Arizona Multihousing Association to review the governor’s actions and determine if he is within his legal rights in saying that landlords could not oust tenants who have not been paying their rent because of COVID-19.

The ruling does not resolve the legal claims by the landlord group about the scope of the governor’s emergency powers.

That would take a full-blown trial, something that could take weeks, if not months. In fact, that’s exactly what the order signed by Chief Justice Robert Brutinel suggested.

But it does mean that Ducey’s order, originally issued in March, will remain undisturbed through at least the end of October when it is scheduled to expire – assuming the governor does not extend it as he did in July.

Courtney Gilstrap LeVinus, president of the landlord group, pronounced herself “shocked and disappointed” that the high court won’t hear the case. She said the ruling will have consequences not only for those who own rental properties but for the whole economy.

Courtney Gilstrap LeVinus
Courtney Gilstrap LeVinus

“We can fully expect to see a rental home foreclosure avalanche in the months to come, or certainly in the beginning of 2021, LeVinus said.

The only relief, she said, could come from $100 million that is supposed to be used for eviction relief. But LeVinus said only about $18 million has actually been distributed since the pandemic began.

Attorney Kory Langhofer, who represents the landlords, said the issue goes beyond the immediate effect on his clients.

“It reflects the failure of governmental institutions,” he said.

“Our Constitution requires the legislative and judicial branches to check executive overreach,” Langhofer said. “At the moment, that’s not happening.”

But Langhofer was able to convince only Justice Clint Bolick who was the lone person on the bench wanting the Supreme Court to review Ducey’s actions.

There was no immediate comment from the governor on either the order or whether he intends to let it expire as scheduled at the end of the month.

But even if the justices had taken up the case and overruled the governor it would have had no immediate effect. Last month, the Centers for Disease Control and Prevention issued its own anti-eviction order which runs through the end of the year.

In seeking Supreme Court action, the landlords claim the governor lacks the constitutional authority to tell constables around the state not to process eviction orders, even those issued legally by judges. They also contend that the gubernatorial directive is violating both the property rights of landowners as well as their right to enter into contracts.

In seeking review, the landlords acknowledged that the governor can exercise certain powers in a public health emergency. But Langhofer said that Ducey, is unilaterally barring landlords from enforcing the terms of lawful lease agreements, created “an indefinite economic welfare and redistribution program, rather than a public health measure to contain the COVID-19 contagion.”

Kory Langhofer
Kory Langhofer

Langhofer also warned the justices that if the governor’s order goes unchallenged, “then there is virtually no personal or commercial transaction or conduct that would lie outside his grasp.”

The way the landlords figure it, by the time the order expires – assuming it is not renewed – it will have been 221 days that tenants have not had to pay rent.

How much is owed is unclear.

Economist Elliott Pollack, in a study done for the Arizona Multihousing Association, figures that if just 1% of the more than 919,000 Arizona households who rent did not make payments over a seven-month period that means a loss of more than $67.7 million. Take that rent-withholding figure to 15%, he said, and the foregone revenues top $1 billion.

Pollack said there also is a ripple effect as landlords cannot pay their employees, contractors and suppliers.

But the issue before the court dealt only with the legal questions.

Langhofer told the justices that the statutory provisions the governor is using for all of his executive orders allow him to exercise police powers, specifically to “alleviate actual and threatened damage due to the emergency,” and to facilitate the supply of equipment and services “to provide for the health and safety of the citizens of the affected area.”

He acknowledged the law does allow the governor to “commandeer and utilize any property.” And that, Langhofer said, could be interpreted to include a moratorium on evictions as a means to ensure that people have housing.

But he said that exists only in a “state of war emergency” – and only if the governor makes provisions for compensating the owners of the property.

Laghofer said that Ducey, in issuing his executive order, acknowledged that it had little to do with protecting public health but was “primarily an economic relief measure.” He also pointed out that tenants seeking relief need not show they are infected with COVID-19 or even that they are in a high-risk category, but only that they provide documentation of “ongoing financial hardship.”

Ducey, however, said there is a direct link between his order and public health.

“The fight against evictions is key in slowing the spread of the virus,” wrote Brett Johnson, the private attorney retained by the governor to defend him in all the litigation over the COVID-19 restrictions he has imposed. “The federal Centers for Disease Control and Prevention has warned that homeless shelters are often crowded, making social distancing difficult, and that homeless can exacerbate and amplify the spread of COVID-19.”

The advice from the justices for landlords to take their case to a trial court is interesting given that there was, in fact, a hearing earlier this year in a separate challenge to the governor’s order brought by Gregory Real Estate and Management. It owns a rental home in Surprise.

In that case, Maricopa County Superior Court Judge Christopher Coury upheld the governor’s actions. He said the evidence “demonstrates reality that Arizona leaders and the general population perceived COVID-19 to be an emergent problem and a virus to which swift and urgent attention was required.”

The lawyers in that case are seeking review by the state Court of Appeals. But they also asked the Supreme Court to bypass that step and consider the case now, something the justices refused to do.

 

 

 

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