Bar owners propose pandemic restrictions on behavior not license type

Some say Ducey's mandate is unfair, unconstitutional

Posted 8/6/20

Cactus Taproom had barely opened this time a year ago and was beginning to foster a customer base of people who enjoyed good craft beer and wine in a city that does not have many boutique taproom experiences.

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Bar owners propose pandemic restrictions on behavior not license type

Some say Ducey's mandate is unfair, unconstitutional

Posted

Cactus Taproom had barely opened this time a year ago and was beginning to foster a customer base of people who enjoyed good craft beer and wine in a city that does not have many boutique taproom experiences.

The small space, capable of serving barely more than 30 people, celebrated its grand opening June 21, 2019. Owner Carrie Parker was fulfilling her desire to showcase the growing craft beer industry closer to home.

Then the pandemic hit.

Arizona Gov. Doug Ducey’s executive order mandating that bars close has left Ms. Parker only with the option of providing to-go drink orders, while nearby restaurants with full bars are open serving alcohol in a social setting.

Previously, her taproom, business model allowed patrons to bring takeout food from other restaurants, food trucks and even from home while following safety guidelines.

But the closure mandate, which she says is unfair, has hobbled what she said was a successful business model. Her sales are down about 80% compared with last month, equating to about 38 less sales each day.

Ms. Parker said every competitor she has is open for dine in and believes potential customers skip Cactus Taproom altogether and choose a restaurant, she said.

“Gov. Ducey’s restriction on (Series) 6 and 7 liquor licenses effects small businesses like mine in an effort to punish the few that didn’t follow the rules. My customers are finding new bars to drink craft beer at. The order sends them down the road to my competition i.e. the restaurant bars, breweries and sports bars allowed to fully operate. If the restriction was fair, it would close their bars and allow to-go alcohol sales and food dine-in only. We want the same opportunity as other businesses allowed to operate in the state.”

Gov. Ducey has ordered restaurants to serve at 50% capacity. Under this order, capacity at Cactus Taproom, located at 20429 N. Lake Pleasant Road #104, would be 16 people, which is a minuscule number compared with nearby sports bars, clubs, casinos and restaurants, she said.

Additionally the executive order states it will remain in place and continue to be reviewed for repeal or revision every two weeks. Ms. Parker said this has added to the challenge.

“My first reaction was how do we stay alive, and for how long? I can do everything for a little bit if I know what that is,” she said. “I can do it for a month, I can do it for two months. But how much more can I do it if I’m not getting close to that break-even point?”

The mandate states businesses holding Series 6 and 7 licenses must close, with the exception of to-go sales. Series 6 licenses allow owners to sell beer, wine and spirits to customers for consumption on premises without any requirement to serve food. This category includes night clubs.

Cactus Taproom has a Series 7 license, which allows owners to sell beer and wine as well as limited to-go privileges.

There are 10 establishments with Series 7 licenses in the city of Peoria, according to the Arizona Department of Liquor. Ms. Parker said the Cactus Taproom is the only non-restaurant with a Series 7 license affected by the mandate, except for Harkins Theater, which is closed.

Some purveyors believe the Series 7 license should not be lumped in with Series 6 as part of the mandate.

The Arizona Restaurant Association, the Arizona Craft Brewers Guild and the Arizona Licensed Beverage Association jointly submitted a letter to the governor requesting restrictions on restaurants and bars not be designated by license types but rather restrictions based on activities and behavior at such establishments.

The letter states certain activities and atmospheres have been known to encourage people to congregate in close proximity and increase the likelihood of viral transmission. By focusing on these activities, regulatory enforcement can be aligned to better prevent these activities across all industry sectors.

This includes activities such as dancing, live music and karaoke, as well as parlor games such as pool, darts or other games commonly associated with eating and drinking establishments.

“The trouble with focusing in on just Series 6 or Series 7 liquor licenses is that you capture good actors along with bad actors and miss bad actors operating under a separate license type,” the letter states. “To make restrictions, such as the current restrictions, based on license type, winds up either permitting or prohibiting the exact type of setting, dependent solely on the license category. Instead, consider eliminating any reference to license types and focus on the risky activity prohibition.”

Rob Fullmer, executive director of Arizona Craft Brewers Guild, said basing a mandate on behavior rather than license type is a better solution.

The guild believes the Arizona Department of Health Services and the county health departments should coordinate with cities and community groups that have experience in outreach to individuals 20 to 44 years old with a focus on the development and deployment of an education campaign to decrease large social gatherings and other dangerous activities and to promote alternatives, such as virtual hangouts or video chat board games, as well as encourage mask wearing and provide information on the proper use and cleaning of masks.

Establishments like Zipps and Applebee’s look more like bars than restaurants, Mr. Fullmer said.

“We want people to support their local breweries and support bars in their neighborhoods. It is important to our sustainability,” he said. “Limiting behaviors like live music and karaoke can cause COVID from spreading. We need to prove a pathway for people to open safely.”

Scot Andrews, Peoria Chamber of Commerce CEO and president, said the mandate has been hard on local businesses like Cactus Taproom.

Bars have appealed to the chamber for help in fairness in opening standards.

“It really is hurting the bars,” Mr. Andrews said. “We are talking to them weekly and exploring ways to help them market take-out. Our city is very supportive, but the governor’s executive order is clear. I don’t think our city will push heavy enforcement, but they will do what they need to in complying with the order. But they are sensitive to these businesses.”

At least 64 Arizona bar owners filed a lawsuit through attorney and Arizona State University professor Ilan Wurman claiming Gov. Ducey’s executive order closing bars is not fair or constitutional.

The Arizona Supreme Court will decide whether to hear the case or not. Mr. Wurman said there’s no time line on the lawsuit, but he is hopeful the court will move quickly given the importance and timeliness of these issues.

“The response to the coronavirus involves important and contested questions, and those are up for the Legislature to resolve. But no matter who makes the decisions, those decisions also can’t discriminate against similarly situated businesses. It’s unconstitutional to treat bar owners as Series 6 and 7 licensees differently from Series 3, 11, 12, 13, 14, 18, or 19 licensees—breweries, wineries, restaurants, hotel bars, private clubs — who all remain open and who directly compete with the bars,” he said.

“None of the bars denies that the coronavirus is real and can be deadly. But the response to the coronavirus is not cost free. In their case, it’s not just a matter of going on unemployment insurance. Their employees all are on unemployment already. It’s about small businesses going out of business. They have two of everything to pay — two water bills, two electricity bills, two rents or mortgages — and sooner rather than later they will have to close their doors for good. And it’s totally unnecessary. All of them were taking proper sanitary measures and all of them should be given the same chance to do so as restaurants and other establishments.”

Philip Haldiman can be reached at 623-876-3697, phaldiman@newszap.com, or on Twitter @philiphaldiman.

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