Arizona Attorney General Mark Brnovich's office took a shot at Gov. Doug Ducey on Friday, saying his orders to close bars because of COVID-19 "arbitrarily discriminate" against some businesses.
Brnovich's office filed a brief in a lawsuit brought by several bar owners, who are challenging Ducey's June 29 order to close them along with gyms, theaters and water parks.
Most of those businesses are now allowed to partially reopen because the COVID-19 statistics state health officials established to allow those businesses to operate have trended down.
But bars with certain types of liquor licenses, called series 6 and series 7, can only be open if they serve food, which many don't, and thus remain closed. They also can't allow people to dance, congregate away from tables, or play parlor games like darts.
"Nearly six months into the declared emergency, it is long past time for the Governor to follow the constitution and convene the Legislature rather than contravene lawful statutes through executive fiat," said the brief from the Attorney General's Office, which was signed by Assistant Attorney General Brunn Roysden III.
Both Brnovich and Ducey are Republicans.
The business closures have caused contention, spurring multiple lawsuits from gyms, bars and water parks to reopen, and prompting two protests by bar workers and owners at the state Capitol in recent weeks.
The lawsuit from bar owners contends that bars with series 6 and 7 licenses are unfairly discriminated against by the governor's orders.
Ducey spokesman Patrick Ptak responded to Brnovich's brief with a statement Friday.
"Throughout the response to COVID-19, the Governor has had to make tough decisions to protect public health," he said.
"We’ve taken a responsible approach in exercising the executive authorities granted to the governor under state law, and in consultation with the White House Coronavirus Task Force. These executive authorities exist to protect public health, and the mitigation strategies set forward in the governor’s executive order have clearly made a positive impact in combating COVID-19. We will continue to prioritize protecting public health while following the constitution and state law."
The governor's lawyers have said that bars with series 6 and 7 licenses are dangerous for the spread of COVID-19 among people aged 20-44 because, without also serving food, patrons are more likely to congregate with others, drink excessively, become impaired and disregard recommendations such as keeping their distance.
During oral arguments Friday, Brett Johnson, the attorney representing the governor, said the orders were justified and that the governor was guided by the top medical professionals in the state and nation.
“That is a tough, tough duty to balance the economic needs of the plaintiffs against the health and welfare of the rest of us,” Johnson said.
Brnovich sided with the bar owners, saying the order is arbitrary and therefore illegal.
Series 6 licenses allow a business to sell beer, wine and spirits. Series 7 licenses allow just beer and wine. Neither have requirements for what percentage of sales must come from food, and both allow off-site sales of beer and wine. Restaurants with a series 12 license can sell all types of alcohol but have to earn 40% of their revenue from food. Series 6 and 7 licenses are substantially more expensive.
"Bare assertions that bars are more dangerous than restaurants because of a requirement of selling an aggregate amount of food, fail to rebut plaintiffs’ claim of arbitrary and discriminatory treatment toward series 6 or 7 licensees," the attorney general's brief said.
CLOSED AGAIN: Here are all the metro Phoenix bars that were shut down for violating COVID-19 guidelines
Support a 'relief' to bar owners
Ilan Wurman, a lawyer representing the bar owners, appreciated the input from Brnovich's office.
"It's a relief to have someone in a position of authority that finally recognizes the plight of the series 6 and 7 licenses, and recognizes the important limits on executive power the governor has been transgressing," Wurman said Friday.
Wurman first brought the challenge to the Arizona Supreme Court, which declined to take the case.
The lawsuit now is in Maricopa County Superior Court.
Wurman asked Judge Pamela Gates on Friday to let the bars open for the Labor Day weekend, but she said she had more than 1,000 pages of briefs filed in the past day in the case and could not make that ruling from the bench.
“We’ve already lost so much this year. Let them open," Wurman said.
The judge asked Johnson, the governor's lawyer, when the public would know the emergency is over.
He said the COVID-19 infections already are declining, but if the state lawmakers want to redefine the governor's emergency powers they can come back into session without Ducey ordering them to do so.
“Slowly but surely we are coming out of the emergency," Johnson said.
Reach reporter Ryan Randazzo at ryan.randazzo@arizonarepublic.com or 602-444-4331. Follow him on Twitter @UtilityReporter.
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