A lawsuit filed this week by several residents, business owners, and property owners within a multi-block “zone” of downtown Phoenix seeks a court order requiring city officials to do something about the unabating homelessness crisis impacting the 19 plaintiffs.
According to the lawsuit, the largest concentration of homeless persons in Arizona has developed on properties owned by or operated by the City of Phoenix in an area between 7th and 15th Avenues and between Van Buren and Grant Streets.
Many of the persons who have constructed semi-permanent tent dwellings on public sidewalks and rights of way are experiencing mental health problems and / or drug and alcohol addiction, but city officials have enacted policies which essentially ignore those issues to the detriment of the community, the plaintiffs allege.
“Not only is the City of Phoenix failing to provide these individuals with housing and needed services, it refuses to enforce in and around the Zone quality-of-life ordinances prohibiting loitering, disturbing the peace, drunken and disorderly conduct, drug use, domestic violence, and obstructing streets, sidewalks, or other public grounds,” the lawsuit contends. “The City’s policies are not rationally designed to address any of the social ills facing the residents of the Zone and are exacerbating rather than alleviating their problems.”
Those policies not only permit illegal conduct on Phoenix-controlled public lands but city officials further encourage problems by directing homeless persons from around the city to the Zone, according to the lawsuit.
“In the Zone and its environs, laws are violated with impunity; residents are subject to violence, property damage, and other criminal and civil violations of laws designed to protect the quality of life of residents; property values have been erased; trash and human waste litter streets and yards; and most tragically, a great humanitarian crisis unfolds as homeless residents of the Zone die on a daily basis,” the lawsuit notes.
The plaintiffs seeking an order from Judge Alison Bachus of the Maricopa County Superior Court that the public encampments in Zone has created a public nuisance for which plaintiffs have a constitutional right to seek abatement of the nuisance
In addition, the lawsuit seeks an order from Bachus prohibiting city officials from taking any further action that will exacerbate the current nuisance and a separate order requiring the city to immediately abate the nuisance.
The lawsuit even points to several options available to city officials, including removal of the encampments to other public lands where they would not constitute a nuisance. Another option permitted by a 2019 federal ruling from the Ninth Circuit Court of Appeals is to create “structured camping grounds” on city property where cleanliness could be maintained along with compliance of laws and ordinances.
A more traditional option would be the availability of enough shelter space so that public camping could be prohibited. However, the lawsuit concedes the Ninth Circuit ruling currently prohibits enforcement of a public camping ban because City of Phoenix officials have failed to provide sufficient resources to address the homelessness issue.
That 2019 ruling requires municipalities to allow homeless individuals to camp on some public lands if there are not enough shelter beds. But nothing in the ruling, Martin v City of Boise, prohibits officials from enforcing quality of life ordinances and criminal laws, the plaintiffs argue.
Those plaintiffs are represented by Michael Bailey, Stephen Tully, and Ilan Wurman. They contend city officials are using the Ninth Circuit ruling “as an excuse to completely wash its hands of this crisis, leaving the homeless individuals and the surrounding neighborhood in an unimaginably horrific situation.”
The lawsuit adds Phoenix officials are entitled to adopt “irrational policies but if its policies create a nuisance and cause damage to the residents, workers, and property owners in the Zone, as they have, then the City is liable for those damages and the court may enjoin the nuisance.”
A Democrat-backed nonprofit wants State Representative Mark Finchem (R-Oro Valley), Congressman Andy Biggs (R-AZ-05), and Congressman Paul Gosar (R-AZ-04) disqualified from the upcoming midterm election for organizing the January 6 protest.
Arizona State University (ASU) law professor and legal expert Ilan Wurman told “The Conservative Circus” that the lawsuit not only misinterprets constitutional law but represents the bad habit of both parties to weaponize the Constitution.
“Just after the Civil War, this clause of the Fourteenth Amendment was enacted to prevent individuals who had been office holders, federal and state office holders, who had taken an oath to uphold the Constitution, who then seceded from the Union, unconstitutionally seceded from the Union, and then took up arms against the government of the United States. By the way, that is an insurrection,” explained Wurman.
The nonprofit, Free Speech for People, invoked the Fourteenth Amendment to argue that Finchem, Biggs, and Gosar were responsible for the U.S. Capitol intrusion because they helped organize the preceding protest.
The lawsuit against Finchem, Biggs, and Gosar is part of a national campaign to “ban insurrectionists from the ballot” under Section 3 of the Fourteenth Amendment: the “14Point3 Campaign.” Congresswoman Marjorie Taylor Greene (R-GA-14) and Congressman Madison Cawthorn (R-NC-11) also face lawsuits under the campaign. Last month, a federal judge in North Carolina ruled in favor of Cawthorn.
Section 3 of the Fourteenth Amendment reads as follows:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
The nonprofit behind the lawsuit, Free Speech for People, also filed another lawsuit last month against the Federal Election Commission (FEC) concerning the debunked Russiagate collusion.
A bill which would allow restaurants whose liquor licenses prohibit off-premises or to-go sales of booze to lease a portion of another type of liquor license that allows for such sales was sent Monday to Gov. Doug Ducey.
HB2773 allows a bar, wine bar, or liquor store to lease its off-sale privileges of non-mixed cocktails for one-year periods to a restaurant which under current law is prohibited from engaging in such to-go sales. The lessee and lessor must be located in the same county, and the lessor’s liquor license must be held in non-use status.
Under the legislation, the Arizona Department of Liquor License and Control (DLLC) will be required to establish an off-sale privileges lease amount for urban and rural counties “that fairly recognizes and is derived from the commercial value of selling spirituous liquor for off-premises consumption.” However, the lessee and lessor can agree to a lease amount different from the DLLC amount.
Other provisions of HB2773 allow a bar or liquor store to begin selling mixed cocktails with a tamper proof seal for off-premises consumption as of Oct. 1. And restaurants can apply to lease those mixed cocktails to-go privileges from a bar or liquor store for one-year periods through Dec. 31, 2025 before applying for a newly created to-go mixed cocktails permit beginning Jan. 1, 2026. The value of a to-go cocktail lease will be established by the DLLC.
If the lease plan is signed by Ducey, the legislation calls for all lease payments to be paid in full in advance, and all existing applicable laws and regulations concerning containers, quantities, and training will apply. Any violations or liability connected to liquor service under a leased privilege or permit would be attributed only the leasing restaurant licensee, according to the bill.
Most restaurants operate with a Series 6 or 7 liquor licenses which cost a few hundred dollars, while bars typically have a Series 12 license which allows for more options such as selling liquor to-go. Series 12 licenses are limited in number and can cost tens of thousands of dollars.
Finding a way for restaurants to conduct off-premises sales of spiritous liquor has been a priority for the Arizona Restaurant Association since November when a state judge ordered the immediate end to one of Ducey’s COVID-19 executive orders which allowed restaurants to violate state law by selling alcohol on a to-go basis even though their liquor license prohibited such sales.
The executive order issued in June 2020 also forbid law enforcement agencies or DLLC from taking any action to enforce the state law. At the same time, many bars, saloons, and wine bars were forced shut due to other Ducey executive orders or public health regulations.
The executive order was challenged in court by attorney Ilan Wurman on behalf of dozens of Series 6 and 7 licensees. Judge Pamela Gates of the Maricopa County Superior Court shot down the governor’s order, ruling that Ducey was not allowed to suspend Arizona’s liquor laws even during a state of emergency.
Gates’ order forced restaurants to stop to-go sales of liquor at the end of 2020, but Dan Bogert of the Arizona Restaurant Association suggested at the time that a change in state law was needed.
“I think that you don’t need to look any further for evidence of that to how popular this is with the consumer base,” Bogert said. “Furthermore, we’re going to be looking at bringing some legislation forward in the next legislative session to address this permanently.”
HB2773 outlines restrictions on the percent of on-site and off-premises liquor sales a restaurant can have. The bill also authorizes a bar, beer, and wine bar or restaurant with a lease to maintain a delivery service. And it includes language retroactive to July 1, 2020 to exempt the manufacture or sale of certain bitters products from regulation under Arizona’s alcohol beverage laws.