Under pressure from a court order, Gov. Doug Ducey agreed Monday to provide a "roadmap'' to allow not just gyms and fitness centers to reopen eventually but also movie theaters, water parks and even some bars.
But not just yet.
Under the plan, gyms and fitness centers could reopen at 25% capacity when the number of people testing positive for COVID-19 in a county drops below 10% of all tests administered for at least two weeks in a row.
It also requires the rate of infection to be less than 100 cases per 100,000 residents, and fewer than 10% of those showing up at hospitals have COVID-like symptoms.
At that same point, movie theaters, water parks and tubing operations could operate at 50%.
And any establishment licensed as bar also could operate at 50% capacity, but only if they agree to certain conditions. They would have to be operated like a restaurant, meaning no dancing, people being seated by a host, and no milling around and mixing.
Gyms at fitness centers could get back to half capacity when fewer than 5% of tests come back positive, the number of cases drops below 10 per 100,000 and fewer than 5% of hospital visits are COVID-related.
And once the rate of positive tests drops below 3%, everyone can reopen and operate as they were before the pandemic.
But not bars and nightclubs.
Forget about going back there for the time being — and possibly through at least the end of the year.
They won't be able to open their doors to customers until the percent of residents testing positive for the virus drops below 3% for two weeks in a row. By comparison, the most recent figure statewide is 12.5%.
Even when a county hits the 3% figure — that point at which other businesses will be allowed to operate at full capacity — the system set up by state Health Director Cara Christ would keep bars and nightclubs at just 50%. She said the special treatment is merited.
"We know that these are high risk for transmission,'' Christ said.
So when would they be allowed to return to normal operations and full capacity?
"When a therapeutic (treatment) or a vaccine is established, then we would reconsider that,'' Christ said. "We know that getting to zero is probably impossible with COVID-19 until we get a vaccine.''
In essence, what was announced Monday sets up a dual process for facilities that have been shuttered until now.
One is that checklist of sorts, similar to what was announced last week to determine when it is safe to reopen schools. That includes that three-part test of positive test results, hospital visitations, and a two-week downward trend in new cases.
Christ said these "metrics'' will be determined on a county-by-county basis.
She said Monday that it appears Yavapai County already has reached that point. And Cochise and Coconino counties may be close.
Everywhere else, Christ said, will be determined with data posted each week.
Pima County, she said, is "really close.'' Maricopa County not so much.
Even when the infection rates hit the targets, though, that does not allow businesses to automatically reopen. Owners first will need to attest that they are willing to abide by certain guidelines, ranging from occupancy and masking to certain cleaning requirements and physical distancing.
The other option is what amounts to an alternate path of sorts for businesses which are located in counties where conditions have not yet reached the point that they can begin the process of reopening. They could petition for a waiver, but with no guarantee one would be granted.
That follows an order last week by Maricopa County Superior Court Judge Timothy Thomason who said that gyms and fitness centers, shuttered by the governor on June 27, are entitled to "due process'' to prove they should be allowed to open — even if state health officials conclude that local conditions do not warrant it.
Under that alternative, Christ said, owners could try to make the case that their own plans for safe operation mean they would not endanger public health. So, for example, she said they might agree to operate at an even more reduced capacity or might have regular testing of employees.
The question that remains is whether what was announced Monday complies with what the judge ordered.
Attorney Joel Sannes who represents Mountainside Fitness — and who got Thomason to order that gyms and fitness centers be provided with due process — said late Monday he was still studying the plan.
But Sannes noted that Christ said it could take up to 15 days for her agency to issue a ruling. And then, if the business was not satisfied, they would have to take the case to the Office of Administrative Hearings and, eventually, to court.
That, he said, may not provide businesses with true due process.
Thomason, in his ruling, did give wide berth to the decisions being made by Ducey and Christ.
"It is not the function of the judiciary to second-guess policy decisions on matters of public safety,'' the judge wrote. But he said it is his role to ensure that the constitutional rights of business owners are protected.
"The injuries to these businesses have to be staggering,'' Thomason wrote.
"The order only gives the gyms a chance to apply for reopening,'' he continued. "It does not order that any fitness center be opened or that anyone be immediately put back to work.''
Daniel Scarpinato, the governor's chief of staff, said businesses were involved in coming up with the standards announced Monday. He called it a "data-driven approach.''
"We do want our businesses to open back up when it's safe,'' he said
"We think the best way to do that is to take a cautious approach,'' Scarpinato continued. "If we can stay the course, keep the numbers going in this direction, that's how we really make sure that businesses stay open.''