Cocktails

Forget about getting that margarita to go with your take-out order of fajitas, at least for the time being.

In a new directive, the head of the state Department of Liquor Licenses and Control has directed his agents to once begin enforcing a law that prohibits the sale of beer, wine or liquor to go from restaurants. 

John Cocca also said that police officers also are free to cite restaurants that violate the law.

All that followed a ruling by Maricopa County Superior Court Judge Pamela Gates that Gov. Doug Ducey acted illegally last March in allowing the restaurants to sell alcoholic beverages to customers picking up orders despite a state law to the contrary.

Gates’ ruling came on an ongoing lawsuit filed against Ducey by more than 100 bars, including several in Scottsdale over the governor’s closure of bars that are not licensed to serve meals. 

Since that time, outright closures have been replaced by restrictions that the owners said are still hurting their businesses.

Patrick Ptak, press aide to the governor, said his boss is still reviewing Gates’ ruling, but that no decision has been made whether to appeal.

In the interim, restaurants that continue to provide alcohol with their to-go orders risk not only fines but loss of their state licenses that permit them to sell drinks to their dine-in customers.

The governor said his original order was designed to provide some financial relief to restaurants which had initially been shuttered for in-house dining. That left only take-out orders.

Even now, with restaurants allowed to operate at 50 percent capacity, Dan Bogert, chief operating officer of the Arizona Restaurant Association said his members still rely heavily on customers getting their means to go.

“Without the ability to include alcohol with to-go orders, a key lifeline has been stripped from these businesses,’’ he said.

If Gates’ order stands, there is recourse for the restaurants: ask the legislature to lift the ban on selling alcoholic beverages to go. 

Bogert said his organization is considering exactly that when lawmakers convene in January.

That, however, will get a fight from bar owners whose liquor licenses are more expensive.

One reason for that is they do not need to maintain sales of at least 40 percent of food items. But that license also gets them the to-go privileges that restaurants do not have.

In her 18-page decision, Gates brushed aside most of the claims by bar owners throughout the state that it was wrong of the governor to single out their establishments for closure while other alcohol-serving establishments like restaurants were allowed to remain open.

Both Ducey and the Arizona Restaurant Association had argued that the special privilege was necessary to help keep the businesses financially afloat.

They, like the bars, had initially been shuttered entirely. And even now they have to operate with limited capacity.

Gates said that is all legally irrelevant.

“The court takes no position on whether the law should be changed to allow to-go alcohol,’’ the judge wrote. “It merely holds that action is outside the power delegated to the governor.’’

Attorney Ilan Wurman said that his clients are being hurt financially as off-premises sales were going to the restaurants that can be their direct competitors.

Gates pointed out that under other circumstances, anyone who suffers monetary damages from the actions of another can seek to recoup. But that’s not the case here.

“The court ... finds the governor’s immunity will likely preclude plaintiffs from collecting damages,’’ Gates wrote. 

And that, the judge said, tips the balance in favor of her enjoining Ducey from continuing his order allowing the off-premises sale of alcohol from restaurants.

Bogert called the ruling “unfortunate,’’ pointing out that there is an increased reliance by restaurants on to-go orders – with those picking up meals also wanting alcoholic beverages.

“Without the ability to include alcohol with to-go orders, a key lifeline has been stripped from these businesses,’’ Bogert said. “This will no doubt lead to less profitability and possibly more permanent closure of our favorite gathering spots.’’

Gates said that other restrictions on bars can stand even if they don’t apply to restaurants and other similar businesses. 

She said testimony convinces her there are certain things that happen in bars that make them “likely high-risk environments for the spread of the virus.’’

“Bars are often loud, which causes individuals to draw closer to hear one another and to speak louder, thus increasing the risk of transmission,’’ Gates continued. “Furthermore, mask wearing is incompatible with drinking, and drinking alcohol impairs decision-making.’’

Then there are the dance floors. The issue, the judge said, is that people not only mix but that limited ventilation and turbulent airflow patterns result in an environment where respiratory droplets are more easily spread.

Wurman said the ruling is not the last word.

He said that he still has a chance to make his case at a full-blown trial that there is no legitimate reason for discrimination.