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Judge's ruling may force state to crack down on restaurants serving liquor during pandemic

PHOENIX — A little-noticed provision in a court ruling this week on bars and alcohol sales could end up curtailing business at some restaurants and force them to close.

In her decision Tuesday, Maricopa County Superior Court Judge Pamela Gates upheld the actions by Gov. Doug Ducey in keeping bars shuttered while allowing restaurants to remain open and continue to serve alcohol. She said that was within his authority to protect public health.

But Gates did not look so kindly on a decision by the governor to tell his own Department of Liquor Licenses and Control to look the other way when restaurants decided to sell beer, wine and liquor out the front door, a move that was designed to help the financially struggling businesses.

That directive, the judge said, hardly fits within the actions Ducey is permitted to take in emergencies. And she said Ducey’s decision to suspend enforcement of a liquor law “impermissibly stretches’’ the governor’s power.

What remains to be seen is whether the governor will rescind that part of his order.

“We are reviewing the ruling,’’ said Ducey press aide Patrick Ptak.

But any move in that direction will get opposition from the Arizona Restaurant Association.

In March, Ducey used the emergency powers he had to close all bars and restaurants to patrons. But he agreed to pleas from the restaurant owners to allow them to continue to sell beer, wine and alcoholic beverages to customers who also were getting food to go.

Only thing is, such off-premises sales are illegal under state law. So Ducey instructed agents for the liquor department to simply turn a blind eye to the violations.

Dan Bogert, chief operating officer of the restaurant group, said that move provided a “key lifeline’’ to restaurants.

“They are helping to keep those places in business and employees employed,’’ he said.

Since that time, Ducey has loosened the restrictions — at least on restaurants. They can provide dine-in services, but only at 50% of capacity. Bars remain closed unless they agree to operate under additional restrictions.

But the directive to liquor agents to ignore the violations by restaurants of law banning off-premises sales remains.

Ptak said the directive was — and is — justified, calling it one of the “tough decisions’’ that the governor has had to make.

“This has been a way for many establishments to maintain their operations while continuing to prioritize public health,’’ he said.

Gates, in her ruling, gave the governor a lot of leeway in deciding the steps he needed to take using his to protect public health. That’s why she left undisturbed his orders shutting bars.

“A clear purpose of (the law) is to grant to the governor emergency powers and the authority to establish an agency plan for and coordinate the state’s response to natural or manmade disasters and to alleviate extreme peril to persons or property,’’ she wrote.

But telling liquor agents to ignore the law, Gates said, doesn’t seem to fit.

“The court finds the executive order banning enforcement of a Series 12 licensee’s violation of off-premises sales of spirituous liquors impermissibly stretches the governor’s power’’ he is granted under state laws, the judge said. “Said another way, the court fails to find that the enforcement ban against Series 12 licenses in (the executive order) effectuates the purposes of (the laws on emergency powers).’’

Bogert argued that restaurants still need the state to keep ignoring the violations of selling alcohol to go.. He said many remain in precarious financial condition.

He said a survey done in July, after in-house dining was again allowed, found that 40% of restaurants said they would be forced to close, permanently, within 90 days.

“And what I’m saying is that number would be higher without the to-go alcohol privilege,’’ Bogert said.

The only reason any of this came to the attention of Gates is the lawsuit filed by more than 100 bar owners challenging the authority of the governor to shut down their operations, especially while allowing the serving of alcohol to patrons dining at restaurants.

Attorney Ilan Wurman pointed out the only distinction is strictly legal.

Restaurants are issued a Series 12 license by the Department of Liquor Licenses and Control. They must generate at least 40% of their revenues from sales of items other than alcoholic beverage.

Bars, licensed as Series 6 for all alcohol sales or Series 7 for bar and wine sales only, have no such restriction. That is part of the reason it costs so much more to acquire a state license to operate a bar, coupled with the fact that the state issues only a limited number of bar licenses in each county.

And there’s something else: Bars — and only bars — can sell alcoholic beverages to go. Wurman said the governor’s executive orders only added insult to injury, forcing the bars to close while at the same time giving the restaurants they normally compete with one key edge they had.

More to the point, Wurman said there’s nothing in the governor’s executive powers that entitle him to simply suspend enforcement of the ban on off-premises sales from restaurants.

Legally speaking, nothing in Gates’ Tuesday ruling requires state liquor authorities to immediately go out and start enforcing the law. That remains for a future hearing.

But she has now put the governor on notice that she is likely to issue a final order saying he has been violating the law and ordering him to stop if he hasn’t done so already.

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CAC professor's new book explores Arizona's graveyards

CASA GRANDE -- Central Arizona College Professor Heather Moulton has long been fascinated by cemeteries.

And with her new book, “Graveyards of the Wild West: Arizona,” she hopes to inspire others to appreciate the history, characters and stories often buried within a cemetery.

“The book is about the graveyards and cemeteries, but really what I”m writing about is the people,” she said. “The stories are fascinating and give us a better understanding of the legends and history where we live.”

Courtesy of Sue Tatterson 

Heather Moulton

Moulton, who teaches English composition and literature at CAC, traveled hundreds of miles to research the book along with fellow CAC teacher Susan Tatterson, a photographer with her own series of books that focuses on abandoned places in Arizona and beyond.

Tatterson took the photos featured in “Graveyards of the Wild West: Arizona.”

The concept of the book was developed when Moulton accompanied Tatterson on research trips for the “Abandoned Places” book series.

“She always had to stop at a cemetery,” Tatterson said. “She was interested in the people there. In going to these cemeteries with her, I became interested too.”

Courtesy of Sue Tatterson 

Susan Tatterson

The pair visited about 15 graveyards — some remote and difficult to find — in researching the “Graveyards of the Wild West: Arizona.” Eight Arizona cemeteries are mentioned in the book, including several in Pinal County.

Among the gravesites that Moulton found most fascinating was that of Mattie Earp, common-law wife of Wyatt Earp.

Her gravesite near Superior is located on a rocky patch of earth surrounded by cactus and trees. A memorial marker at the site reads “In memory of Celia Blaylock aka Mattie Earp. July 3 1888 — suicide, Pinal A.T.”

“She was considered one of Wyatt’s wives although they weren’t officially married,” Moulton said. “She’s one of the special characters in the book.”

Warren Earp, who is buried in Pioneer Cemetery in Willcox, is also mentioned in the book.

“Warren Earp is the only one of the Earp brothers buried in Arizona. The others are buried in other places even though they left a legacy on Arizona. They’re considered heroes, but really, after everything that happened, they were the only ones standing left to tell their tales,” Moulton said.

“Graveyards of the Wild West: Arizona” was released on Aug. 24 and is the first in a series of similar books. The next, focused on New Mexico, will be released Sept. 28.

In her first book, Moulton writes that Arizona had an exciting history long before it became a state.

“Miners, cowboys, and outlaws passed through Arizona on their way to California during the Gold Rush of 1849, but when copper was discovered in 1854, people stayed and mining towns all around the state sprung up. Of course, with an influx of population comes a new need for graveyards. The cemeteries of the mining and cowboy towns, like the towns themselves, were often put together in a hodge-podge manner,” she wrote. “Some Arizona graveyards linger in disrepair (Yuma Pioneer Cemetery) and others have become thriving tourist attractions (Tombstone). Regardless of their conditions, the cemeteries of Arizona offer powerful and precious reminders of Arizona’s wild history.”

Moulton said her fascination with cemeteries was formed in childhood. Her mother writes historical romance novels and would often visit graveyards in search of unique names.

“When I was young I would go to cemeteries with my mother and we’d look at the names on the graves,” Moulton said.

Courtesy of Sue Tatterson  

The gravesite of Mattie Earp, common-law wife of Wyatt Earp, is located near Superior.

In writing “Graveyards of the Wild West: Arizona,” Moulton focused on historic cemeteries. In some cases, she visited a site to discover who was buried there. Others are well known as historic sites.

“Arizona cemeteries are filled with the gangs and outlaws who were part of the state’s history,” Moulton said. “These are stories that are important. We should know our history and the real stories. Growing up, watching Westerns on TV was always interesting to me, but these are the real stories and visiting the cemeteries makes me feel connected to the legends.”

Moulton believes people will be drawn to the book both for the haunting cemetery images as well as the compelling stories of the people buried there.

“The photos are phenomenal,” Moulton said. “But I hope people read the stories because what the book is really about is the people whose graves are photographed.”

LD8 debate covers pandemic, ed funding, marijuana

PHOENIX — The state’s response to the COVID-19 pandemic, funding for education and the possibility of voters legalizing marijuana made for a lively discussion among the candidates from Legislative District 8 Tuesday.

The YouTube debate held by the Arizona Citizens Clean Elections Commission featured Arizona Senate candidates Republican T.J. Shope and Democrat Barbara McGuire, and House candidates Republican incumbent David Cook and Democrat Sharon Girard.

State Sen. Frank Pratt, who is running for one of the LD 8 House seats, did not attend the event.

Shope, now serving in the House, said one of the first bills he would propose, if elected to the Arizona Senate, would be to fund the expansion of Interstate 10 between Phoenix and Casa Grande. Shope sponsored a bill in the House last session to help fund the construction of a new bridge for I-10. The bill passed the House but died in the Senate after the COVID-19 pandemic hit the state.

Funding rural broadband internet access was one of the first bills that McGuire said she would sponsor. A lot of children are missing out on a good education, now that schools have switched to online learning due to COVID-19, because they live in rural areas of the state and don’t have access to a good internet connection.

Cook said he was planning for a lot of “heavy lifting” in the new session of the Legislature. He expected to tackle a lot of budget issues in the new session that have been caused by the pandemic. He was also hoping to work on funding for a north/south corridor stretching from U.S. 60 in Apache Junction to I-10 in Eloy. The state has been working on funding for the project for the last 17 years, he said. The population in the area is expected to grow rapidly over the next several years.

“We have to get this completed,” he said.

Girard, a retired physician assistant and nurse, said her focus would be on health care. The pandemic has brought attention to the fact that many people in the state still cannot afford health insurance. She would look at the possibility of allowing people to buy into the state’s Medicaid program, the Arizona Health Care Cost Containment System, in order to make sure everyone had access to purchasing health insurance.

The candidates also expected to continue to deal with issues from the COVID-19 pandemic in the new legislative session.

Shope said he planned to continue many of the same programs that the Legislature had put into place during the last session to deal with the pandemic. He was especially concerned about making sure the state’s medical professionals had the funding they need to take care of patients and provide testing for the public.

McGuire wanted more funding for testing and contact tracing in rural areas. She also wanted to establish a team that could help the state prepare for future pandemics and continue to guide the state through the current one.

Cook thought the state was on “the brink of getting out of this one (pandemic),” and the Legislature gave the state the tools it needed to handle the crisis during the last session.

Cook said he would meet with the leadership from cities, towns and counties in his district to determine what had worked well and what hadn’t worked and determine how to fix those problems.

He was also concerned about a lack of free testing for the virus in rural areas and wanted more testing resources for those areas.

Girard pointed out that the state may be out of the first wave of the virus but the flu season was coming up and a second wave of the coronavirus was possible. The state also needs to start looking more closely at the issues brought to light by the pandemic, such as unemployment benefits and evictions.

“People cannot live on $240 a week,” Girard said.

The state needs to create a pandemic plan to help people and businesses that are struggling, she said.

When asked how much unemployment a person should be given, Girard said she wasn’t sure. It was something she would have to sit down with a panel of experts and economists to figure out. However, the state shouldn’t be near “the bottom of the barrel” among all of the states when it comes to unemployment benefits, she said. Girard suggested raising unemployment benefits to somewhere near the middle of the pack.

Cook said unemployment benefits should be about at minimum wage level.

He pointed out that unemployment benefits are paid by Arizona businesses. Any changes to the level of benefits received should balance the needs of the unemployed and businesses, he said.

Those on unemployment would benefit more if the state reopened the economy, Cook said.

McGuire agreed with Cook. She didn’t want to disincentivize people from looking for work by raising unemployment benefit levels too high.

Shope said $240 is “definitely too low” for unemployment benefits. He didn’t know what the correct level of benefits would be. He agreed with Cook that the amount of unemployment benefits available should be balanced against the needs of businesses that have to pay those benefits. Those businesses are also hurting during the pandemic.

The safety of students, teachers and staff as schools gradually reopen was also discussed. All of the candidates agreed that once an area met the state benchmarks for reopening schools, it should be left up to school boards as to how and when those schools should reopen.

Shope, who has served on the Coolidge school board for several years, said it is a “very difficult decision for all.”

One of his main concerns was making sure that special education students and their families were getting the support and services they need.

McGuire thought that some schools had reopened too early. She pointed to increases in the number of COVID-19 cases that were being reported at universities across the country.

However, she agreed that it should be left to school boards as to how and when to reopen school buildings once their area has met the state benchmarks.

Cook raised concerns about schools, especially rural school districts, losing funding because parents had decided to move their students into private or online-only schools. He was also worried about the long-term effect on students and their learning.

Girard pointed out that it could also be a time for innovation and creativity. Schools should reopen with the help of health experts, she said. Teachers and staff are leaving or retiring early because of health concerns. The health of the general public should come first.

The talk of education also brought up the issue of the Invest in Ed initiative on November ballot. If approved by voters, the initiative would tax single people making more than $250,000 and couples making more than $500,000 at 3.5% on the income over those levels. The funds would go to teacher pay, student support services, career and technical education, teacher mentoring and education programs. It’s expected to raise about $940 million annually.

Girard supported the initiative, saying it would create a dedicated stream of revenue for the state’s schools.

Cook did not support it, saying the initiative is discriminatory and would punish people who had higher incomes.

McGuire also supported the initiative, pointing out that it would only affect the top 1% of incomes in the state.

Shope said he would not vote for it. He was concerned about the impact it might have on small business owners.

The candidates also discussed a voter initiative that would legalize recreational marijuana for Arizona residents over the age of 21.

Shope said he wasn’t opposed to legalizing recreational marijuana but was opposed to how the initiative was written. He pointed out that if it passed, it would be very difficult to change the tax rate in the law, if the federal government decided to legalize marijuana and also tax it.

Cook said he would not be voting for the initiative. The situation should have been handled in the Legislature, he said. There are also unanswered questions about what to do with all of the people who have been convicted for marijuana violations who are currently sitting in jail.

He suggested an ad hoc committee to research the situation and contact other states, such as Colorado, that have legalized recreational marijuana.

The commission also has a debate for Legislative District 11 candidates scheduled for 6 p.m. on Sept. 30 on YouTube.