New rules announced Tuesday by the Arizona Department of Health Services (ADHS) require patrons and employees of bars, nightclubs, and restaurants which sell liquor and food to abide by Centers for Disease Control and Prevention guidance on COVID-19 “under all circumstances,” but some small business owners say the rules will unfairly restrict operations, not help bring in more revenue.
The requirements made public Oct. 20 cover several topics, from occupancy, sanitation and ventilation, and employee health. It also addresses social activities often offered at establishments with liquor licenses.
Bowling, for instance, is now permitted, but only the person preparing to release a bowling ball can be standing, according to ADHS. All other players must remain seated and be at least 6 feet from each other, and all players must be masked, with no noted exception if they live in the same household.
As to music offerings, ADHS will require all singers -whether karaoke or live performers- to wear masks while singing in bars and nightclubs that offer dine-in food service and restaurants that service booze. They must also be at least 12 feet from the nearest patron, or 6 feet away if separated by plexiglass.
Dancing, however, is still prohibited, and any violation of that requirement could lead to the establishment being shut down and having its liquor license suspended.
The ADHS requirements were announced one day after Gov. Doug Ducey spoke at a political rally attended by a few thousand mostly unmasked people who stood shoulder to shoulder for nearly two hours. It left many bar and restaurant owners reacting with frustration at ADHS for implementing requirements that are particularly burdensome for small businesses.
“After Monday’s rallies this new set of requirements is the most ridiculous government mandate I’ve ever read,” said the owner, who asked to remain anonymous for fear of retribution from the Arizona Department of Liquor and Licenses Control and her local health department. “If political rallies don’t pose a public health concern and civil rights protests are okay then my employees should be back to full capacity.”
While the new ADHS requirements place much of the onus for enforcing COVID-19 public health measures on businesses, some of the rules apply to patrons. One such requirement is the mandatory use of a face covering “except when actively eating or drinking,” even if mask use is not mandated by a local order.
There are exceptions for patrons who have trouble breathing, or are “unconscious, incapacitated or otherwise unable to remove the cover without assistance.” But it does not mention other CDC-approved exemptions, especially for people with negative emotional reactions to wearing a mask.
The rules announced this week also reveal that before a bar, nightclub, or liquor-serving restaurant can offer dine-in service in the first place, it must comply with two ADHS requirements.
The first requires the business to attest in writing that it will comply with all COVID-19 public health “mitigation strategies.” Failure to submit an attestation, or oath, is grounds for government officials to shut down the business, and could endanger the establishment’s liquor license.
The second involves determining the establishment’s allowable occupancy based on the number of local COVID-19 cases per 100,000 population, the percentage of positive tests, and the percent of COVID-like illnesses which lead to hospital visits. ADHS will use that data, updated every two weeks, to identify whether there is Minimal, Moderate, or Substantial community spread in an area.
Bars and nightclubs offering dine-in service as well as liquor-licensed restaurants in areas of minimal community spread cannot go above 50 percent of their legal occupancy unless the local COVID-19 positivity rate falls before three percent.
In areas of moderate community spread, restaurants with liquor licenses can continue to operate at 50 percent capacity, but bars and nightclubs cannot offer dine-in food service unless granted special dispensation from ADHS.
No bar, nightclub, or liquor-licensed restaurant can provide dine-in services in an area of “Substantial” community spread, the ADHS rules state.
Bars and nightclubs which do not offer dine-in food service remain under other restrictive operational rules per Ducey’s Executive Order 2020-43 issued in June. Some of those restrictions are the subject of a lawsuit filed in August by attorney Ilan Wurman on behalf of several liquor licensees who claim the state’s COVID-19 protocols are unfairly benefiting corporate and chain restaurants at the expense of mom-and-pop bars and saloons.
Wurman sees the ADHS dine-in service rules issued this week as a step in the right direction but not a big enough step. Which is why he has called for a special session of the legislature to address short and long term economic issues related to the pandemic.
“The new guidelines reflect partial progress on our discrimination claims, but the reality is they’re still restrictive and bars won’t long survive with these conditions,” the attorney said.
Wurman also recently served the State of Arizona with a $12.5 million notice of claim, which is a precursor to a lawsuit. The claim contends Ducey’s executive orders have “irreparably harmed” more than 100 bars by allowing restaurants to violate state law through the sale of liquor on a to-go, or off-sale, basis.