People walk into Golfland Sunsplash on May 15, 2020, in Mesa. (Photo: Sean Logan/The Republic)

A Mesa water park has filed a lawsuit against Gov. Doug Ducey, alleging the Republican leader unfairly forced the business to close during the pandemic with no clear path for reopening. 

The suit contends the governor made an “irrational” decision to shutter Golfland Sunsplash and other water parks while allowing hotels and resorts to keep pools and water slides open — a move the business claims violated its equal protection and due process rights.

“Plaintiff has not been provided with any opportunity to be heard to establish that Plaintiff’s operation of its facilities is not a threat to public health,” the legal complaint says, arguing Ducey “exceeded his authority” when issuing the closure order. 

“There is no rational basis for closure of (Golfland Sunsplash) water park when Plaintiff is observing recommended protocols to prevent the transmission of COVID-19,” it says.

The Governor’s Office, on the other hand, says Ducey has made “reasonable and responsible decisions in the best interest of public health.”

“We’re following the law and the constitution,” spokesman Patrick Ptak said Wednesday. 

Complaint: State enforcing ‘arbitrary classification’

Ducey announced the executive order at issue June 29, as Arizona confronted one of the worst COVID-19 outbreaks in the world.

In addition to shutting down water parks and tubing, Ducey closed bars, gyms and theaters to slow the virus’ spread. He permitted pools — including those at hotels — to remain open if they capped groups at 10 people.

The order indicated the earliest the state would consider lifting the restrictions was July 27. The lawsuit indicates Sunsplash expected an opportunity to reopen in accordance with Arizona Department of Health Services guidelines “on or before” that date, however.

On July 23, the governor opted to extend the closure order for an additional two weeks, indicating the state’s case numbers did not yet support relaxing it. 

By then, a handful of gyms had sued the governor over the directive, arguing the state was unfairly jeopardizing the future of certain companies, ignoring gyms’ due process rights and failing to offer clear protocols for reopening. 

Other businesses, including Sunsplash, were also fed up with what they viewed as a roller coaster of closures and reopenings: Ducey already had shut water parks down for more than a month in the spring.

Golfland Sunsplash complied with both closure orders, according to the lawsuit, while at least a dozen Maricopa County hotels and resorts with water slides and other features were unaffected by the June directive. The suit also lists several “municipal water parks” that remain open, such as city-run pool complexes in Chandler and Mesa.

“Arizona law prohibits (the governor) from enacting any law that grants any person privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations,” the complaint says.

It says the state is enforcing an “arbitrary classification.”

A path forward for businesses

The judge who reviewed the fitness center lawsuit against Ducey initially upheld the governor’s June 29 order. He later sided with gyms when the state didn’t offer them a clear path to reopening, ruling state officials needed to do so promptly.

The Sunsplash complaint similarly contends the state “did not prepare or even begin to prepare protocols” for water parks to reopen or allow Sunsplash to “establish that its safety plan will be effective to reduce the risk of (COVID-19) transmission.” 

Attorney Joel Sannes is representing both Mountainside Fitness and Sunsplash.

State health officials released county-based reopening guidelines for businesses affected by the June 29 order, including water parks, on Monday, the same afternoon the suit was filed. They’re based on three levels of community transmission: substantial, moderate and minimal.

To determine a county’s standing, officials consider the number of cases per 100,000 people, percentage of positive test results and percentage of hospital visits due to COVID-like illnesses. The closer a county is to “minimal,” the more freedom businesses there have to reopen and operate at a higher occupancy level. 

Water parks in counties with minimal or moderate spread, such as Yavapai and La Paz, may reopen at 50% occupancy as soon as they attest to a series of health and safety guidelines also released by the state Monday. But water parks in counties with substantial spread — such as Maricopa, where Sunsplash is located — must go through an application process if they want to reopen now.

They must make their case to state health officials via a proposal with preventive measures that go above and beyond those laid out by the state. Health officials will review the applications within 15 days, according to ADHS director Dr. Cara Christ, and businesses can appeal if the state denies their applications.

The lawsuit says Sunsplash had submitted a reopening plan to the state but received no response.

It was not immediately clear when Sunsplash submitted that proposal, as the company did not respond to a request for comment. 

Christ said Monday that she expected Maricopa County to move to the “moderate” transmission zone in the next few weeks “if the trends continue the way they are.” 

Water parks can fully reopen once a county’s infection rate drops below 3%, which falls under the state’s “minimal” transmission category.

Are water parks a COVID-19 threat?

Golfland Sunsplash says throughout the legal complaint that its operations pose no threat to public health during a pandemic. 

Information from the U.S. Centers for Disease Control and Prevention suggests the reality may be more complicated. 

The CDC does say there is no evidence COVID-19 can be spread through water in pools or water playgrounds: Disinfecting pool water with chlorine should kill the virus.

But two of its key recommendations for COVID-19 prevention — mask-wearing and social distancing — are difficult to do at a crowded water park.

When Sunsplash partially reopened in early May, it opened three water slides but no pools. The company said at the time it was not opening wave pools or swimming areas because physical distancing would be too difficult to enforce in open water areas. 

Officials at the time said the park would monitor pool water regularly for proper chlorine levels. It encouraged guests to wear masks and said it would make sanitizing dispensers readily available. 

The CDC also encourages operators to post informational signs and disinfect surfaces and urges visitors to wash their hands and cover their coughs. 

Sunsplash plans to reopen in August, according to its website. The Golfland portion of the amusement park is already open.

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