Bars Notch a Win in Arizona COVID Ruling, But To-Go Drinks Hang in the Balance

In a ruling made public today, Maricopa County Superior Court Judge Pamela Gates sided with a group of Arizona bar owners who've argued that Governor Doug Ducey's executive order earlier this year easing rules on restaurants and allowing them to sell to-go drinks gave restaurants an unfair advantage over bars, which were forced to close by the same order.

Ilan Wurman, a law professor at the Sandra Day O’Connor College of Law at Arizona State University, represented about 130 bars in the state in the lawsuit. He posted an announcement on Twitter Monday.

“Judge’s ruling came in. We won on the off-sale privilege issue," he tweeted. "Governor Ducey cannot violate existing law and give restaurants the privilege of selling alcohol to go, which bars paid for. If Gov Ducey wants to do that, he needs to call the legislature into session."

In May, Ducey signed an executive order that let Series 12 establishments (restaurants) stay open, albeit with certain COVID-related health and safety restrictions. Those establishments were also given the new privilege of selling alcohol to-go.

Prior to COVID, to-go privileges were only afforded to Series 6 and Series 7 businesses, which include taverns, beer-and-wine bars, and bottle shops. ("Off-sale" is industry lingo for selling alcohol for off-premises consumption.) Those establishments pay extra for that privilege in licensing costs. In Wurman's lawsuit, filed in August, and in subsequent protests held at the Arizona Capitol, the Series 6 and Series 7 establishments cried foul at the governor giving restaurants the ability to sell to-go packaged alcohol, while at the same time shutting down bars. 

Gates agreed. She wrote that Ducey has been "continuing to grant the privilege of off-premises sale of beer, wine, and spirituous liquor to their competitors in violation of Arizona law.”

Gates dismissed several of the bars' other claims in the suit, noting that, for a variety of reasons — dance floors, loud music that requires customers to get closer to talk, more movement between tables and parties — bars pose a greater public health risk than restaurants in a pandemic, and that the governor was well within his powers to single them out for closure. Wurman tells New Times the bars will take up some of those on appeal.

Currently, Wurman says many, but not all, of his clients are back open. Many continue to sell alcohol to-go, as they've been allowed throughout the pandemic. But he maintains the one thing that could have really helped Arizona bars over the past eight months was having an exclusive ability to sell alcohol to-go during their shutdown.

“If people have to suffer because of the governor’s coronavirus policies, then we should suffer as equally as possible,” Wurman says. “He shouldn't get to pick winners and losers when his friends in the restaurant industry are the usual winners.”

So, what’s next?

Wurman says restaurants don’t have to immediately stop selling takeout booze, because Series 12 businesses aren’t a party to this particular case.

“There’s no court order telling [a restaurant] you have to do something, there’s a court order telling the governor his order is unlawful,” Wurman says, “But [Ducey’s] order is still there until he gets rid of it.”

The governor will be given some time to digest the ruling and decide what legal path his office wishes to take, Wurman says. Ducey could appeal. But Wurman said he and his clients expect Ducey to promulgate an executive order rescinding the provision that gave restaurants off-sale privileges.

At that point, restaurants will be on notice, and you'll likely have to go to your favorite bar, and not just any restaurant, for to-go drinks.