PHOENIX – In response to the news that that the Arizona State Supreme Court has declined to hear their case for now, 125 bar owners have refiled their case in Superior Court. The bar owners have included several claims for damages.
The Supreme Court’s decision comes in spite of several high-profile grassroots developments, including hundreds of bar owners, staffers and supporters attending the “Not Our Last Call” Rally at the AZ State Capitol on August 20, and more than 11,300 people signing a Change.org petition to speak out against discriminatory orders that have allowed restaurant bars, hotel bars, casino bars and other similar establishments to stay open, but have kept “series 6” and “series 7” bars closed indefinitely.
Led by ASU law professor, Ilan Wurman, Associate Professor of Law at the Sandra Day O’Connor College of Law, the bar owners’ new lawsuit requests that it immediately overturn Ducey’s orders forcing some bars to remain closed indefinitely, while restaurant bars, hotel bars, casino bars and other direct competitors have been allowed to stay open. The bar owners have filed for a temporary restraining order and preliminary injunction. “In July, many of these small businessowners could still afford to weather this out for a bit longer,” says Wurman. “But now, dozens are mere weeks away from closing their doors for good.”
Will Lord Ducey respond? He can’t because he knows, that we know, that he is running a scam! https://t.co/EhLGWxl0Yy
— James T Harris (@JamesTHarris) August 23, 2020
The bar owners argue that the distinction between series 6 and 7 licensees on the one hand and series 12 “restaurants” on the other has no relation to public health. The legal distinctions are solely that series 6 and 7 licensees paid for the privilege of not having to maintain a minimum amount of food sales, and paid for the privilege of “off-sale,” or selling packaged alcohol for off-premise consumption. “Neither distinction has anything to do with public health,” Wurman says. “All of my clients were actively complying with public health measures. Many have enormous outdoor spaces. There’s simply no connection between their license series and their ability to implement public health measures.” “Singling out series 6 and 7 licensees,” Wurman adds, “was lazy at best; at worst, doing so was a favor to Governor Ducey’s friends in the powerful restaurant industry.”
The bar owners’ new complaint includes dozens of photographs and video evidence of karaoke nights, night clubbing, and dancing at series 12 “restaurants,” which have remained open. For the first time, the complaint also includes several claims for damages.
The bar owners also argue the statute granting plenary emergency powers to the Governor violates the “nondelegation doctrine,” because it effectively allows the Governor to be a lawmaker. “This case is about whether the citizens of Arizona are governed by laws, or by the whims of one man,” says Wurman, who teaches constitutional law and administrative law at ASU.