Arizona Gov. Doug Ducey issued Executive Order 2020-43 closing bars, gyms, theaters, water parks and river tubing operations throughout Arizona on June 29.
On July 9, 26 bars throughout the state of Arizona sued the governor, arguing that Ducey did not have the authority to issue such an order and bars should be allowed to remain open.
The lawsuit alleged that Ducey’s unilateral order violated the nondelegation doctrine by granting him powers reserved for the Arizona State Legislature, violated the privileges and immunities clause of the state constitution and deprived the owners of due process.
The number of bars and drinking establishments throughout the state whose owners are now plaintiffs has nearly quadrupled, according to Ilan Wurman, the lawyer representing the litigants.
“A flood of new bars have joined the suit since Monday’s [Aug. 10] ludicrous guidelines. We’re at over 92 bar owners now,” Wurman said Aug 12.
“The orders of the governor being challenged in this case were set potentially to expire on July 27, and then again on Aug. 10,” Wurman wrote in a motion to expedite.
However, on Aug. 10, the Arizona Department of Health Services “promulgated guidelines implementing the governor’s challenged executive orders that effectively guarantee Petitioners will be closed down for the foreseeable future,” Wurman wrote. “As a result of this indefinite extension of the closure of petitioners’ businesses and the months they have already been closed, several are on the brink of financial ruin and permanent closure.”
Due to the urgency of his clients’ businesses, Wurman is asking the courts to hear the case as soon as possible, asking for a date within seven days of Aug. 25.
Ducey’s Executive Order 2020-43 survived a challenge on July 27, but on Aug. 7, Maricopa County Superior Court Judge Timothy Thomason ruled in a similar lawsuit involving gyms that Ducey’s order that gyms “pause operations until at least July 27, 2020, unless extended” — with that extension of two weeks written in Executive Order 2020-52 — violated due process because the order did not give gyms any means to safely reopen.
The ruling essentially forced ADHS and Ducey to present plans by which gyms could meet criteria to reopen via “attestation forms,” which they began to do this week. Several Verde Valley gyms have since reopened. At the same time, ADHS laid out a series of criteria by which bars can file attestation forms and reopen.
The bar litigants are hoping a friendly judge may see the gym case as precedent and strike down the order as unconstitutional under due process claims.
Ducey’s order on bars only targets those with a Series 6 or Series 7 license, i.e., full liquor bars and beer and wine bars. Other types of liquor establishments — restaurants that serve liquor and drinking establishments with full liquor service, such as hotel bars — can operate as normal because they have a different type of license but are de facto the same as standalone bars.
“The randomness and unfairness of this second closure is something people have a hard time understanding,” said Rebecca Schemmer, co-owner of Vino di Sedona, a West Sedona wine bar that was one of the original 26 plaintiffs. “Of 19 liquor license types, the governor chose two types to close. People ask all of the time why we’re closed when all the wine tasting rooms in Cottonwood are open, or they’ll name a place that has a bar open late at night that runs on a Series 12 restaurant license.”
The governor’s new rules for allowing some bars to reopen rely on county-specific benchmarks. Yavapai County met the three benchmarks:
■ Two consecutive weeks with percent positivity below 10%.
■ Two consecutive weeks with hospital visits for COVID-like illnesses in the region below 10%.
■ A decline in COVID-19 cases, or less than 100 cases per 100,000 individuals for two consecutive weeks.
With numbers in the “moderate” range, Yavapai County bars could open as soon as the new guidelines were proclaimed.
Coconino County, however, met the first two
but the not the third: The last two weeks had been at 143 and 99 cases per 100,000 residents, meaning no bars with Series 6 or 7 licenses in Coconino County could open.
This means bars in West Sedona could open, and some have already, while bars on the east side of town — only Mooney’s Irish Pub — could not.
“Mooney’s is the only Series 6 licensed establishment that is closed due to Executive Order 2020-43, yet Sedona has 102 businesses per Arizona Liquor information still selling alcohol,” said Ian Juul, owner of Mooney’s. Juul was one of the initial 26 bars that sued Ducey.
Juul said that in Sedona there are 60 restaurants, three breweries, 15 hotels with bars, 13 beer and wine bars and three wine tasting rooms, but only his, with a Series 6 license, was forbidden to open because of his location on the Coconino side of town and their license.
“We are literally the only bar restaurant in the Verde Valley not allowed to open because we fall within a mile of the Yavapai County line in Sedona,” Juul said. “All my customers are now socializing at these 102 other venues and I am closed for business.”
“We closed our bar because we complied with the governor’s executive order and didn’t think it was optional, however, as time went by we learned that many places with Series 6 and Series 7 licenses remained open the entire time, showing that the order was inconsistent and showed favoritism to certain individual businesses, in addition to showing favoritism to restaurants, wineries and breweries,” Schemmer said. “In fact, Vino Di Sedona was the only business in West Sedona affected by the governor’s blanket closure, leaving us completely frustrated at the ineffectiveness of the order.”
“Almost everyone who left our business because we were closed went to a neighboring restaurant with a bar making them more crowded while our 1/4-acre patio sat empty,” Schemmer said.
Schemmer added that the wine store allowed the business to remain open for sales even if customers could not drink on premises.
“In addition to being a wine bar — Series 7 license — we are also a full wine store Series 10 license,” Schemmer said. “Community support and our retail wine has kept us from having to close our doors forever. We have no idea how a bar that rents space and doesn’t have any source of revenue can possibly survive this second closure.”
This week, Vino di Sedona opened. Customers are isolated at spaced tables around the patio and must wait for table servers; they cannot order from the bar. “Wandering and table hopping is not allowed,” according to printed rules given to customers, and “No dancing … Please send your complaint to Governor Ducey.”
Ducey’s office did not respond to request for comment.
