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.

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.”