While rejecting bar owners' argument that the governor's emergency powers violate the state constitution, the office of Attorney General Mark Brnovich agrees that it's an arbitrary decision to target liquor licenses issued to bars but not the ones issued to restaurants. The attorney general's office is also calling on the governor to order a special session of the Legislature to resolve the issues instead of trying to continue to address the crisis through executive decree.
The attorney general is empowered to weigh in on constitutional matters, like those raised in the lawsuit, said Ryan Anderson, a spokesperson for the attorney general's office.
"This isn't about bars...it's about a broader principle," Anderson told Phoenix New Times.
The attorney general's brief claims that the justification offered to the court for Ducey's distinction, that bar patrons are more likely to become impaired and violate COVID-19 protocols, is unfounded.
"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 brief reads. "Both bars and restaurants are already prohibited from serving a patron to the point of intoxication."
The argument about the discrepancy in the licenses is one bar owners emphasized in a rally at the State Capitol last month.
"There’s simply no connection between their license series and their ability to implement public health measures,” Ilan Wurman, an Arizona State University law professor who's representing the bar owners in their lawsuit against the governor, told New Times at the time.
Anderson said the AG's office asserts that Ducey has overstepped his emergency powers and must involve the Legislature to address the problems he's trying to fix with the order. Being in a crisis does not eliminate the need to act within the law, particularly when there are potential criminal consequences for bar owners, he said.
A spokesperson for the governor said in a statement that Ducey has had to make tough decisions to protect public health and has taken a responsible approach in exercising executive authority in consultation with the White House's 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," the statement reads. "We will continue to prioritize protecting public health while following the constitution and state law."
While the brief carries the weight of the attorney general's legal opinion, it's still up to the bar owners and their legal representation to challenge the governor's order. A hearing is scheduled for this afternoon.
Read the brief here: