Legislation crafted by Rep. John Kavanagh, R-Fountain Hills, would set the maximum penalty for violating emergency orders at a civil fine of no more than $100. That compares with current law which makes it a criminal misdemeanor with the potential of six months behind bars and a $2,500 fine.
The measure also would allow police to issue a citation only after an individual or business has first been warned about the violation and chooses not to comply. And, even then, Kavanagh has set up the legislation to allow someone to escape the penalty entirely by going to court and showing he or she is now abiding by the order.
Most immediately affected will be what’s left of executive orders issued by Gov. Doug Ducey in the wake of the COVID-19 pandemic. While he has dissolved his stay-at-home order and allowed most businesses to reopen, the governor has mandated that they comply with various directives including “social distancing” of both staff and patrons.
During public appearances, Ducey has used the threat of jail to try to keep retailers and restaurants from reopening before he said they could.
Kavanagh said, from his perspective, the decision to take the issue out of the criminal code is just basic logic.
“First of all, nobody’s enforcing the current penalty, either because they think it’s unfair or they think the whole process is unfair,” he said. That includes several county sheriffs who have publicly declared they and their deputies will not be issuing citations.
“Add to that the utter confusion of COVID,” Kavanagh said.
That includes the initial advice telling people not to wear a mask. Now, he said, that’s the protocol.
“There’s too much confusion over this particular issue to hold people to criminal standards,” Kavanagh said.
He dismissed the idea that eliminating the threat of jail time and stiff fines will lead to less compliance with what remains of Ducey’s orders.
“I think people are going to obey because they want to obey the law and I don’t think the penalty necessarily is what determines compliance,” Kavanagh said. The key, he said, is providing clarity so people know what they are meant to do.
“This COVID has so much confusion around it,” he said. And that, Kavanagh said, is not just what’s being caused by the government.
`The experts keep changing their opinion on everything,” he continued. “So a lot of people have no idea what to do.”
It is with that in mind, Kavanagh said, that he added other provisions.
One is the ability of people to escape being cited if they agree to comply when requested. He said that’s not a big departure from what is in the governor’s current executive orders.
Then there’s the ability of violators to purge themselves of any guilt.
“They’re still issued the summons,” Kavanagh said. “They would have to go to court with proof that they corrected it.”
Still up in the air is whether Ducey will accept the changes.
“We do not comment on draft legislation,” said gubernatorial press aide Patrick Ptak.
Kavanagh conceded he has not run the verbiage by the governor’s staff. But he said he’s presuming Ducey will go along.
“There’s been a lot of negative public reaction to criminalization,” Kavanagh said. “And he’s very responsible to the will of the people.”
House Speaker Rusty Bowers pointed out that the penalties are not new. He said they were added years ago when legislators first approved laws designed to give the governor — any governor — special powers to deal with an emergency.
“The misdemeanor wasn’t created for COVID,” he said.
Now, Bowers said, people have had a chance to see how that law works. And the speaker said he and his colleagues believe that a criminal penalty is not necessary.
The measure is expected to be voted on Wednesday by the House Judiciary Committee which Kavanagh chairs.