Regents side with Gov. Ducey in challenge to closing Arizona's bars

PHOENIX — The board overseeing Arizona’s university system is defending the broad executive power being exercised by Gov. Doug Ducey, saying it will keep college students out of bars — at least for the time being.

“Bars such as those surrounding the universities are breeding grounds for COVID-19,” wrote a team of attorneys from two private law firms representing the Arizona Board of Regents.

The filing at the Arizona Supreme Court comes as the Republican governor seeks to defend himself from a lawsuit filed by dozens of bar owners challenging his ability to use executive orders to close businesses such as their own.

The bar owners’ attorney, Ilan Wurman, says that the law giving Ducey that authority is unconstitutional.

Ducey already filed his own legal papers arguing there is nothing wrong with the law.

The governor has picked up support from other groups, including the Board of Regents, which have filed legal arguments urging the justices to throw out the challenge against Ducey’s authority. These include state and local chambers of commerce, organizations representing hospitals, doctors and nurses, and Maricopa County.

Also, the governor’s Department of Health Services hired an outside attorney so its director, Dr. Cara Christ, could give the state’s high court her own arguments about the nature of COVID-19 and how guidance from federal, state and local health officials “supports (if not compels) Gov. Ducey’s decision to temporarily close bars in Arizona.”

The attorneys for the universities, meanwhile, detailed for the justices all the things they are doing to protect students. These include promoting social distancing by offering more classes online, spreading out students attending courses in person, and moving services such as counseling and academic advising online.

University of Arizona President Robert C. Robbins warned students Thursday that they could face suspension if they violate health safety rules during the pandemic. His comments were specifically aimed at social media posts claiming some students intend to hold big parties once classes resume Aug. 24.

The attorneys for the regents told the justices that allowing bars to reopen would undermine all those efforts and described bars as “particularly risky.”

“They allow (and even invite) an environment that, in most respects, is exactly the opposite of the safe environment that public health officials recommend — and that the universities are diligently working to create,” the legal brief states.

Put simply, the regents’ lawyers say, bars encourage “unhealthy personal behaviors.”

“It is virtually impossible to wear a mask when drinking,” they argue. “As people become intoxicated, they tend to talk louder, tell jokes or sing, which spreads more droplets. In many bars, loud music or noisy crowds force you to move closer to hear.”

Alcohol compounds the risk, they said. “Alcohol of course can disinhibit people and perhaps promote even more breaches of social distance and sharing of drinks and food.”

To drive home their point, the attorneys counted the number of bars in the ZIP codes of each of the three universities.

For Northern Arizona University the tally is 31. There are 44 bars around the main campus of Arizona State University. And there are 56 bars in the four ZIP codes around the University of Arizona. That is not by accident, as bars market to university students, they said, enclosing photos of ads placed by bars.

“Similar advertisements fill student and local newspapers, student informational pamphlets, and local tourism guides,” the regents’ attorneys told the court.

“According to one study, the ‘wet’ alcohol environment around campuses — including lower sale prices, more promotions, and alcohol advertising at both on- and off-premises establishments — was correlated with higher binge drinking rates on the college campuses,” the legal brief states.

As for the interests of the business owners, the lawyers said the Board of Regents “sympathizes” with them and their patrons. But they said the governor’s order “merely sets reasonable limitations as a result of this global pandemic.”

Anyway, they said, the restrictions are temporary — though Ducey’s latest order, issued Thursday, extends the closure indefinitely, with a promise to review it every two weeks. Bars can still provide pick-up, delivery and drive-thru services, the regents’ attorneys noted.

In challenging Ducey’s action, Wurman, representing the bar owners, said the law giving the governor broad police powers, including closing businesses, is an unconstitutional delegation of the Legislature’s own power.

The regents, in turn, are telling the justices that if they find Wurman’s arguments have legal merit, they should not simply overrule and void Ducey’s order. Instead, they said, the court should give the Legislature “an opportunity to correct that purported issue.”

That assumes, however, that lawmakers, confronted with having to debate emergency powers, would give this or any governor the same sweeping authority.

There is sentiment among some legislative Republicans that those powers have been used in ways that go beyond the Legislature’s intent when it adopted the law. And they want to revisit the issue, if not immediately, then once the emergency is over.