The Pima County Board of Supervisors on Wednesday adopted temporary measures for the reopening of restaurants, gyms, pools, spas and venues.
The county proclamation, which came a day after Gov. Doug Ducey announced measures to further open the state’s economy, has raised questions about whether it conflicts with state guidelines. The vote was 3-2 along party lines.
The county vote established 15 mandatory guidelines and two recommendations for restaurants along with additional regulations for pools, spas, gyms and attraction venues. Those 15 guidelines have been temporarily added to the Pima County Health Code and come with a $500 penalty on the third and subsequent violations.
The regulations went into effect immediately despite opposition from Republicans Steve Christy and Ally Miller. The county has not said how long they will be in place.
Miller, who represents District 1 north of Tucson, called the regulations discriminatory toward some businesses and inconsistent.
In particular, she objected to a requirement that restaurants perform temperature wellness checks on all vendors and third parties doing business. The county amended that regulation to make the wellness checks mandatory for restaurant employees and recommended for third-party services.
Christy, whose District 4 includes Green Valley and parts of Sahuarita, said the process to approve the measures was rushed and asked to postpone the vote until next week to allow for more public input and observation.
Democratic Chairman Ramón Valadez, who made the motion to approve the regulations, rejected Christy's amendment. Earlier, Valadez had asked Deputy County Administrator Dr. Francisco Garcia whether COVID-19 still exists and is as contagious as before; Garcia said yes.
State vs. county
Christy was also concerned that the county's regulations exceed those put forward by Ducey and could draw a legal challenge and sanctions from the state.
Civil Deputy Pima County Attorney Regina Nassen told the board that the county's guidelines fill in the gaps and are not meant to conflict with the state's guidelines.
"Could someone come along and claim that some of these requirements are more stringent or in some way inconsistent with the governor's order," she asked. "That is certainly possible. But I think there would be very good responses to that."
After the meeting, County Administrator Chuck Huckelberry said that he didn't see the county's regulations as usurping Ducey's authority.
"They could sue over anything," he said. "I think all we're doing is giving our best public health advice to implement his general guidelines. If they want to say that's not good, then it will come down to a factual dispute between what is good public health advice and what isn't."
Patrick Ptak, a spokesman for Ducey's office, said the state's guidelines for restaurants reopening are recommendations for best practices. There are no penalties.
The state is working with the industry to develop and implement the guidelines but they are ultimately deferring to the restaurants for compliance, he said.
As far as the state would challenge the county's guidelines, Ptak said their office is reviewing the county board's actions.
After the meeting, Christy said the county's citation component alone makes them more stringent than the state's and, as a result, would violate state statutes that don’t allow any entity to impose stronger restrictions.
He also said the county should have waited and observed whether businesses followed the restrictions on their own before implementing regulations with a citation component. The county's move showed a lack of trust in businesses to do the right thing, he said.
Christy said the reopening of businesses should have been a celebratory event, but the county's new regulations threw cold water on it and made matters worse.
Huckelberry said although it is immediately in effect, there is time for business to meet the requirements.
"It's like everything else, we have the practical limitation of implementation," he said. "So, my guess is it'll be in for a little over the next two weeks."
Last week, Huckelberry described the 15 regulations — as well as two recommendations — as a set of 17 voluntary best practices that would give restaurants a seal of approval from the county for compliance.
However, voluntary has moved to mandatory as the county weighed the seriousness of the COVID-19 risk involved in reopening business, he said.
The county also conducted a public survey asking the public to rate the importance of the guidelines. Huckelberry said there were more than 9,000 responses overwhelmingly ranking all 17 with the highest importance.
He said the results of the survey might have been a factor in the county's move to make the regulations mandatory.
"It probably did," Huckelberry said. "We've gone back and forth. If you listen to all of those meetings we've had, we had some talk about voluntary, and you had some people very adamant that it should be a regulation."
The board also adopted temporary modifications to zoning requirements to help restaurants provide more seating capacity.