Several days after Pima County and the Town of Sahuarita struck opposing stances on requiring face masks, neither is budging and both are citing state statutes to support their positions.
Last week, Gov. Doug Ducey gave local governments the authority to create their own policies on face coverings but when it comes to Sahuarita and Green Valley there are different rules in play.
Unincorporated Green Valley is under the county’s resolution, which requires everybody to wear masks over the nose and mouth in public and for workers when they deal with the public. Sahuarita has not mandated masks, saying it defers to CDC and state guidelines.
Mayor Tom Murphy said he and town attorney Dan Hochuli “feel pretty strongly” the town is acting within its rights in not requiring masks. He said Sahuarita is a subdivision of the state, not the county, which allows them to mandate their own rules in light of Ducey's decision.
“There’s specific statutes that in an emergency order the county controls the edicts within unincorporated areas but with the mayors of all the cities and towns, unless agreed upon by the council, they do not apply,” Murphy said.
Murphy cited two statutes: ARS 11-251-05 (D), states that any ordinance passed by a county that applies to incorporated towns must be approved by the town council first.
Under ARS 26-311, Murphy said he has powers within town limits when an emergency exists. The statute appears to deal with natural and man-made disasters and speaks to dealing with threats such as riots and acts of civil disobedience.
County Board Chairman Ramón Valadez said the county ordinance was not created through statutes related to emergency powers, it is through the health code.
"If the town attorney is correct then the food code does not apply," he said.
In a release Friday, Murphy stated “today’s Resolution adopted by the Pima County Board of Supervisors says that it ‘applies throughout Pima County, including within incorporated areas,’state law is clear that it does not apply in cities and towns.”
Pima County Supervisor Sharon Bronson also said the mayor is “incorrect” in citing state law. She said their ordinance is “under the authority of the Health Department.”
“He has no option but to enforce,” she said. “It was under our authority as the regional health department.”
County will act
County Communications Director Mark Evans said while Sahuarita may disagree with their mandate, it doesn’t mean local businesses don’t have to comply.
“The county has statutory authority to make this apply county-wide, so if they have a different opinion in Sahuarita, OK, it still doesn’t mean that it doesn’t apply there,” he said.
The county has put a reporting process in place where any individual may report violations of the June 19 resolution online including photographs and a description of the noncompliance.
Evans said if the county receives a report on a business in Sahuarita, the county will act.
“We will let those businesses know they are not complying, and so we’ll follow the resolution,” he said. “The resolution applies to every person in Pima County. If the Town of Sahuarita has a different opinion and doesn’t like any enforcement taken by the county then that’s up to the town of Sahuarita.”
The county is planning an educational approach, but if a business has multiple violations it could face an enforcement action in the form of a permit or license being revoked. Any enforcement would need to go to the board and be investigated before action could be taken.
Murphy said if a business in Sahuarita were to face enforcement, he hopes there would be discussion between the town and county. He said any major noncompliance within the town is something he would want to resolve and look into.
“If there is a big violation, I’d want to address it too unless it was way out in left field, which I wouldn't suspect will happen,” he said. “I'm assuming if the county did contact a business, I’m sure that business would contact the town and staff to make their case and they will investigate it.”
Murphy said in the case of the county acting on their resolution in Sahuarita, he would consult with the town attorney and town manager.
Murphy is uncomfortable with the reporting mechanism and worries about “pitting residents against businesses or residents against residents.”
“I just see this pitting person against person with a website where people can report and take pictures,” he said. “Can someone face their accuser? I worry about the validity of it. It just gave me pause and I passed on my pause.”
He said when the draft of the county face mask resolution was made, Valadez contacted him to discuss it and Murphy brought up several concerns.
Along with the website reporting, Murphy voiced worry over young children being required to wear masks, which the county adjusted. He believes the exceptions within the county resolution make it hard to enforce and wouldn’t want enforcement to fall to local police or businesses.
Enforcement through the county would be done through the health department and Evans said staffing was increased to manage the May 21 proclamation about reopening restaurants and they should be able to manage this latest mandate.
“I think a lot of it is already existing staff who have already been budgeted for, this is part of their duties,” he said. “We are supporting the HEROES Act, if that gets passed there may be federal funding to reimburse us for already budgeted expenses.”
Murphy said though Sahuarita doesn’t have a mandate in place requiring face coverings, it doesn’t mean the town is “anti-mask.”
“Not doing the mandate in no way implies we don’t want people to comply,” he said.
In Monday's Town Council meeting, two members of the public addressed concerns about the lack of mask mandates and the value of masks preventing the spread of COVID-19.
Charles Stack, a Doctor of Public Health candidate at the University of Illinois who said he contributed to FBI discussions on mitigating COVID-19 spread, sent a letter to all council members prior to the meeting where he spoke during call to the public.
“The virus doesn’t care if we are Republican or Democrat, it just wants to reproduce and spread,” he said. “Research is showing that a single case can infect an entire roomful of restaurant patrons, church members, etc. I have no doubt that this is happening in Sahuarita, and my wife and I continue to wear masks in public and avoid crowds.”
Councilman Simon Davis requested the council have an open discussion about masks and COVID-19 under a provision allowing an emergency item to be placed on the agenda without the usual notice.
“We’re not going to meet for three months and we have some significant issues coming down," he said. "We’ve seen in the last few days an incredible response from town members.”
No council member would second the motion, shutting down the discussion before it could take place.
The county's ordinance highlights the rapid rise in COVID-19 cases since the governor's executive order expired May 15, and that the spike has health professionals across the nation concerned.
Matt Heinz, an attending physician at Tucson Medical Center, is running for Valadez's supervisor seat in District 2, which includes the bulk of Sahuarita. He said he's treating dozens of COVID-19 patients and "hospitals are about to be out of ICU beds."
While he'd like to see "as much autonomy as possible" in face covering rules, he thinks the county's policy is the right move.
"Given the public health crisis and what I am seeing in the hospital... doing it through the public health ordinances and laws, as the county did, which makes it take effect for incorporated and unincorporated Pima County, I think in this particular situation that probably was the best way to ensure that everyone is complying," Heinz said.
For him, COVID-19 is not a political issue, it's an issue of health.
"I’m on team human, you know, team human versus team COVID. I think we’re all pretty much on team human," he said. "This isn’t like a Trump-Biden thing, this isn’t a Republican-Democrat thing. It should not be.”
Other towns and cities
Scores of cities, towns and counties throughout the state instituted face covering policies after the governor's direction.
Nogales, Tucson, Santa Cruz County and Phoenix have all approved public mask requirements, among others.
Maricopa County has passed a county-wide mask requirement that applies to incorporated and unincorporated areas of the county. The mandate sets “minimum standards” for face coverings, though cities and towns can enact stricter regulations if they choose. They can’t set less restrictive measures.