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Some Arizona resorts could face orders to shut down part of their water parks.

State Health Director Dr. Cara Christ said Monday she is sending inspectors to certain resorts to find out exactly how they are operating their water features during the pandemic. Those operating in an unsafe fashion will face orders to close, she said.

Part of the issue, she said, is that several resorts are advertising to get day visitors to their pools, water slides, hot tubs and “lazy river” floats to generate additional revenue.

Even those facilities that limit attendance to resort guests could wind up in trouble, however — and with an order to limit activities — if their operations allow people to gather in a way that could spread COVID-19, Christ said.

She said the key is to avoid congregations of large groups of people.

“So if they’re limiting the activities, and it’s limited to hotel guests, and they’re not drawing large crowds like people waiting, that will be taken under consideration,” Christ explained.

“But if they’re bringing in the public, and everything’s open, and they’re operating as a water park, that’s going to be a much different scenario,” she continued. “And if you’re doing both of those, that’s completely off the table.”

Christ’s comments came Monday as her boss, Gov. Doug Ducey, asked a federal judge to throw out a lawsuit filed against him by the owners of Mesa Golfland Sunsplash, a water park that has been forced to remain closed under his order.

Since the start of the coronavirus pandemic, most Americans consider outdoor activities safe and are spending more time outside. Once the disease is mostly behind us, travel spending in the United States is expected to rebound dramatically.

Sunsplash’s attorney, Joel Sannes, said there are resorts in Arizona that appear to be operating nearly identical facilities, not only for their own guests but for day visitors willing to pay an admission fee.

Legally speaking, Sannes contends there is no “rational basis” for the disparate treatment. He wants U.S. District Court Judge John Tuchi to order Ducey to give the Mesa facility, and any other freestanding water parks, the same ability to operate.

Tuchi has scheduled a hearing on the issue for the end of the week.

Christ said when she and Ducey first crafted the order of what was allowed to be open and what was not, they assumed resorts would limit attendance to guests. That way there would be a list that health officials could use for contact tracing should someone come down with the coronavirus, she said.

That was before Capitol Media Services provided her department with an extensive list of resorts in Arizona that allow outsiders to pay a fee to use facilities for a day. That got her attention.

“What we’re doing is we are sending our licensing surveyors out to do an on-site inspection of several of the facilities we have heard about to identify what they’re doing and whether they are operating as a water park,” Christ said.

“If it’s a pool with a slide, that’s not a water park,” she said. For example, Christ said, the governor’s executive order permits city-run pools to operate.

Pools at hotels also can remain open if there are prohibitions against groups larger than 10 or more from congregating together in or near the water. And pools at apartment complexes can be open if there are signs reminding people that they should not gather in groups of more than 10.

What her investigators find in visiting the resorts could prove material to whether the governor wins the lawsuit.

In his Monday filings, Ducey attorney Brett Johnson told Tuchi that the governor’s orders “do not permit hotel, resort or municipal-owned water parks to operate.” Even if they are open, Johnson said, it’s legally irrelevant.

He said Golfland in essence is arguing that Ducey cannot enforce his executive order because other businesses may be operating illegally.

But Johnson said Golfland has submitted a request to reopen. And he argues that the facility can’t go to court until there’s a decision on that and it has exhausted its administrative remedies.

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