By Howard Fischer
Twitter: @azcapmedia

PHOENIX — The owners of a Mesa water park are suing to be allowed to reopen, claiming the policy of Gov. Doug Ducey that keeps it shuttered is discriminatory.

In a new lawsuit, attorney Joel Sannes says that hotels and resorts have been allowed to keep open their water slides, rivers for tubing, swimming pools and hot tubs despite the COVID-19 pandemic. Ditto private pools at apartment complexes.

But he said the water park at Mesa Golfland has remained closed since late June, with no opportunity to even present evidence to state health officials that it can operate safely. So he wants Maricopa County Superior Court Judge Janice Crawford to declare the governor’s policy to be unconstitutional discrimination, allowing not just his client but the owners of other water parks around the state to once again have visitors.

“It is simply unacceptable that we were forced to close while several other waterparks across the state, including a state operated waterpark, have been allowed to remain open,” stated Steve Carlston, General Manager for Sunsplash in Mesa. “Even when called to the state’s attention that other parks were still open, the state still took no action to close the other parks or allow Golfland Sunsplash to open.”

Separately, Mr. Sannes told Capitol Media Services that the opportunities that Mr. Ducey and the Department of Health Services unveiled Monday to allow gyms and fitness centers to petition to reopen does not comply with an order by Maricopa County Superior Court Judge Timothy Thomason requiring the state to provide these facilities with “due process.” So now he is asking Mr. Thomason to rule that the governor is violating his order.

There was no immediate response from the governor’s office.

All water parks and pools had been closed in March as part of the effort to slow the spread of COVID-19. They were all allowed to reopen in May if they followed certain guidelines.

In late June, however, with a spike in coronavirus cases, the governor reversed course and shuttered many businesses, including water parks. But that order created an exception for “pools operated as part of a public accommodation, such as those at hotels” as long as they enforce certain  rules like keeping groups larger than 10 from congregating in or near the pool.

Mr. Sannes said the owners even provided the state health department with a safety plan and asked for authority to reopen. But he said that, to date, neither Mr. Ducey nor the agency has responded.

In the meantime, Mr. Sannes said, other facilities are open.

For example, he said, the JW Marriott Phoenix Desert Ridge Resort & Spa has five pools, a “lazy river,” a waterslide and a children’s splash area. And the Oasis at Arizona Grand Resort has a seven-acre water pool with three water slides, a wave pool, a lazy river, a children’s pool and a 25-person hot tub.

That, he said, isn’t fair.

“It looks to us like the governor’s picked winners and losers,” Mr. Sannes said.

“The governor has decided the winners are water parks that are associated with hotels,” he continued. “And the losers are the three stand-alone water parks in Maricopa County.”

Any ruling in favor of Mesa Golfland would likely also affect pools and water parks located elsewhere in the state.

The fight over gyms and fitness centers is at a whole different stage.

Last week Mr. Thomason said Mr. Ducey had to at least provide a process for these facilities to be able to show they can operate safely.

That resulted in Monday’s order setting out the conditions under which these establishments and others could reopen. But those are based on the level of COVID-19 infection in each county.

There is a separate  process for gyms and fitness centers to petition for permission the health department to reopen even if the infection levels have not reached what the health department sets as a trigger. But Mr. Sannes dismissed that as not providing any real relief.

“First of all, there’s no form to fill out to ask for the permission to reopen,” he said. “And there’s no timeline for ADHS to respond to an application for permission to reopen.”

But that’s only part of the problem.

If the agency denies the request, it goes to the Office of Administrative Hearings.

Under normal circumstance, he said, that agency would review what is being proposed and determine if it does or does not comply with what’s required.

Only thing is, Mr. Sannes said, there is no standard for the hearing officers to use to determine if the agency acted properly in denying the request.

“There’s no criteria,” he said, nor any standard to determine when a gym or fitness center has met the burden of proof. “And there is no guidance for the Office of Administrative Hearings to decide whether or not a particular fitness center should be allowed to reopen.”