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The new lawsuit says hotels and resorts have been allowed to keep open their water slides, rivers for tubing, swimming pools and hot tubs despite the pandemic.

But the Sunsplash water park, which is part of Mesa Golfland, has remained closed since late June, with no opportunity to present evidence to state health officials that it can operate safely, wrote attorney Joel Sannes.

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.

Separately, Sannes told Capitol Media Services that the opportunities 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 “due process.�

So Sannes, who represents Mountainside Fitness in that case, is asking the judge to rule that Ducey 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.

Sannes said the Sunsplash owners provided the state health department with a safety plan and asked for authority to reopen. But he said neither Ducey nor the department has responded.

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

winners and losers

For example, he said, the JW Marriott Phoenix Desert Ridge Resort & Spa has five pools, a “lazy river,â€� a water slide and a children’s splash area. And the Oasis at ÃÛèÖÖ±²¥ Grand Resort has a 7-acre pool with three water slides, a wave pool, a lazy river, a children’s pool and a 25-person hot tub.

That isn’t fair, he said.

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

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

Last week Thomason said 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. Those are based on the level of COVID-19 infections in each county.

There is a separate process for gyms and fitness centers to petition for permission from the ÃÛèÖÖ±²¥ Department of Health Services to reopen even if the COVID-19 levels have not reached what the state set as a trigger.

But Sannes said that doesn’t provide 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.�

Also, if the department denies the request, it goes to the Office of Administrative Hearings.

But Sannes said there is no criteria or standard for the hearing officers to use to determine if the department acted properly in denying a request.

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