A day after the Pima County Board of Supervisors OK’d a final version of regulations aimed at restaurants reopening, it was defending that action in a letter to the state Attorney General’s Office.
The board on Thursday approved 15 measures heavy on social distancing and cleanliness. It was the fourth version of a proclamation passed May 13 with input from a task force that included restaurant owners but still met with opposition from the industry. Thirteen of the measures will end up temporarily in Pima County Health Code; the other two are recommendations to restaurateurs.
The final version of the proclamation did away with measures requiring reservations and does not require restaurants to post cleaning logs online every two to three hours.
Supervisor Steve Christy persisted in his opposition to the regulations, saying all of the writing and rewriting is of questionable value with a possible state investigation hanging over the county’s head.
“Until we get a determination from the state attorney general, all of this means nothing,” he said.
Attorney General Mark Brnovich’s office, at the urging of three state legislators, last week requested a written response from Pima County addressing allegations that it violated the governor’s Executive Order by imposing additional requirements on restaurants beyond state guidelines.
The county’s nine-page response, written by Chief Civil Deputy County Attorney Andrew L. Flagg, centered its defense of the proclamation around two points: Arizona counties have broad authority to respond to public-health crises, and the May 21 proclamation does not violate state law.
In his first point, Flagg cited two court cases, from 1945 and 1991, that he said gives counties “broad authority to regulate public health.”
He wrote that counties have emergency authority in unincorporated areas and that the Legislature has only “prohibited county action ‘inconsistent’ with emergency action take by the governor.”
In his second point, Flagg carried that point further, denying that the county action is inconsistent with Ducey’s “Stay Healthy, Return Stronger, Return Smarter” order.
“If a county can adopt measures to prevent HIV transmission in adult-amusement establishments … surely it can adopt temporary, penalty-free measures applicable to reopening businesses to mitigate and slow the spread of Covid-19,” Flagg wrote, citing the 1991 Marsoner vs. Pima County case.
Flagg said the county’s actions have not been inconsistent with Ducey’s plan for Arizona.
“(A)lthough the County’s orders are in addition to the Governor’s orders in the sense that they provide more detailed implementation of his requirements, they are not inconsistent with the Governor’s orders,” he wrote.
If Pima County is found in violation, it would have 30 days to resolve the issue or lose state-shared revenue, according to a letter from Brnovich’s office.
On Wednesday, Ducey gave a clue as to how the state views Pima County’s action when asked about it at his weekly press conference.
“The guidance that the CDC and White House have given the state of Arizona was that we could go county by county or statewide,” Ducey told a reporter. “The guidance that we have put out is statewide, and that’s what we expect municipalities to follow. Those are the guidelines.”
Christy, who voted against the overhauled proclamation on Thursday along with Supervisor Ally Miller, said Brnovich would be justified in finding the county in violation of the Executive Order.
“I believe it is imperative that this board cease and desist in trying to come up with its own regulations until that determination by the state attorney general is made,” he said.
Supervisors Sharon Bronson, Betty Villegas and Chairman Ramon Valadez voted in favor of the proclamation.
Valadez sent a letter to Ducey’s office dated May 12 giving the governor a heads up that the board was likely to approve additional measures governing the reopening of restaurants on May 13. Valadez said business owners and the public wanted more specific direction than the state offered.
The brief letter lays out the county’s argument for going beyond state guidelines, telling Ducey, “We appreciate your general guidance but business owners and the public have asked for specific measures.”
The letter was copied to County Administrator Chuck Huckleberry, mayors and officials from Tucson, South Tucson, Marana, Sahuarita and Oro Valley, but not to any members of the Board of Supervisors.
Christy took exception to that Thursday, asking Valadez during the meeting why they weren’t included.
“That was an oversight on my part, I apologize for it,” Valadez said. “I should have done it. I didn’t do it.”
Ducey’s Executive Order, announced May 12 and which took effect May 16, states in part that “no county, city or town may make or issue any order, rule or regulation that conflicts with or is in addition to the policy, directives or intent of this Executive Order…”