When he announced an extension Thursday of his order closing bars, gyms, movie theaters and more, Gov. Doug Ducey acknowledged that “businesses and employees have sacrificed” as the state fights the spread of COVID-19.

But some of those businesses are tired of sacrificing.

A lawsuit filed with the Arizona Supreme Court by 50 owners of 44 bars claims Ducey’s order, first filed June 29, is unconstitutional. The bars in the suit come from cities around the state, including Chandler, Mesa, Phoenix, Prescott, Sedona and Tucson, among others.

“They’re all complying with the order,” said Ilan Wurman, the attorney representing the bar owners. “But the reality is that if this goes on for much longer, some of them will just have to open up and risk the enforcement authorities.”

Wurman, an associate professor at Arizona State University’s Sandra Day O’Connor College of Law, claims in his filing that the closure order is unconstitutional because it is unevenly applied and it denies bar owners their due process. He also claims that only the Legislature has the power to issue the order and that laws cannot be subject to “the whims of one man.”

Ducey ordered the shutdown on June 29, when his executive order noted that there were 73,908 confirmed COVID-19 cases in the state and 1,588 deaths. Those numbers had more than doubled by Thursday – to 156,301 cases and 3,142 deaths – when Ducey extended the order that had been set to expire Monday.

The initial order restricted several activities: banning most gatherings of more than 50 people, stopping the issuance of festival and special event licenses and limiting operation of many pools in the state. It also ordered bars, nightclubs, gyms and fitness centers, movie theaters, water parks and tubing operations to “pause operations until at least July 27, 2020, unless extended.”

That extension came Thursday, with no end date but with a requirement that the order be reviewed every two weeks.

“This decision is not made lightly. Businesses and employees have sacrificed and they’ve had to make big adjustments,” said Ducey in a tweeted statement accompanying the extension. “We’re grateful for the compliance we’ve seen across the state and the responsible actions to protect public health.”

Wurman said his clients want to be safe, but reiterated that the government should not have the authority to pause the livelihood of Arizona residents for months at a time.

“You can’t just not run your business. It’s not just that you’re not making money,” he said. “They still have two of everything to pay. Two water bills, two electricity bills, two mortgages and rent, so it’s not as simple as just becoming unemployed.”

Similar efforts by fitness centers to block the governor’s order failed in court earlier this month.

Several groups have lined up on Ducey’s side in the latest case, filing friend of the court briefs that defend the governor’s ability to declare an emergency and act to stop the spread of the disease, which they say he has done.

The briefs, filed Thursday with the Supreme Court, come from groups as diverse as the Arizona Board of Regents, which noted bars affected by the order “surround each university” in the state, and from the Arizona and Greater Phoenix chambers of commerce, which called the executive order “an important step to mitigate the expanding reach and wreckage of this pandemic.”

Other briefs came from Maricopa County and the Arizona Department of Health Services, whose director, Dr. Cara Christ claimed that bars are especially unsafe during the pandemic.

“Most everyone enjoys going out with friends, family, and even strangers to have a drink and celebrate something, or even just to unwind after a long day,” Christ said in the department’s brief. “In times of pandemic, what we do during ‘normal’ times must take a back seat to public health and safety. This is one of those times.”

Wurman said he has until next week to file a response to the state, at which point the Supreme Court will decide whether to hear the case or not. He said he was not surprised by the opposition to the bar owners’ suit, but still believes he is on the right side of the argument and is optimistic the court will agree that the order should be blocked.

“The entire establishment is falling into line with Gov. Ducey. But we have the Constitution on our side, and that’s all we need,” he said.

 

Story by Brett Bavcevic, Cronkite News