Gov. Doug Ducey is not taking any action to curb the decisions of some cities and counties to ignore his directive that they scrap their mask mandates.
And there’s no current indication he will.
Gubernatorial spokesman C.J. Karamargin on Tuesday dismissed as “inconsequential” that several communities have decided to maintain their ordinances requiring people to mask up in certain situations. That includes not just in public buildings and transit, which Ducey has said is OK, but also in businesses and restaurants which the governor says are free to tell employees and customers they need no longer wear masks.
Karamargin declined to say whether this effectively means that the governor has acquiesced to the arguments that cities and counties are free to ignore his edicts.
“They’ve never enforced the mask mandates,” he said.
But, absent a legal challenge from the governor — or anyone else — those ordinances remain on the books.
The governor last week abolished any remaining state-imposed mask requirements at businesses. State Health Director Cara Christ said she and the governor concluded they were no longer necessary.
Ducey, however, issued a new executive order barring any local ordinance that is in conflict.
“This includes but is not limited to mandated use of face coverings,” the governor said.
On Tuesday, however, the Pima County Health Department announced that as far as it was concerned its mask ordinance, enacted in December, remains in effect.
It requires everyone to wear a mask when in public if they cannot easily maintain a continuous distance of at least six feet from others. It also mandates that businesses require customers to wear masks.
Violators are subject to a civil fine of up to $500.
Pima County Administrator Chuck Huckelberry acknowledged that neither the city nor the county has issued citations. But he said that doesn’t make them ineffective or irrelevant.
“What it is, basically, is a high degree of voluntary compliance,” Huckelberry said.
“If you rescind it, you send the message that it’s no longer necessary,” he continued. “Well, it is necessary based on public health standards and infection rates per 100,000 people.”
Pima County is not alone. Officials in Tucson, Phoenix and Flagstaff also have refused to rescind their own mask directives.
What the ordinance also is, Huckelberry said, is legal — and beyond the reach of the governor. He said counties in particular are specifically authorized to enact public health measures.
“Our mask resolution was based on the county’s countywide public health authority as expressly given in the statutes,” Huckelberry said. “We don’t believe, at least our attorneys don’t believe, that an executive order can preempt a statute.”
While there’s been no action by Ducey, three Republican legislators are moving to challenge the local governments who have not agreed to accede to the governor’s authority. Sens. Vince Leach of Tucson and Michelle Ugenti-Rita of Scottsdale have asked Attorney General Mark Brnovich to determine the legality of the local decisions as has Rep. Bret Roberts, R-Maricopa.
This isn’t the first time the county has used its health powers to enact local regulations.
In January the county imposed a 10 p.m. curfew to help curb the spread of the coronavirus. But that lasted less than a month after Pima County Superior Court Judge Kellie Johnson concluded that the resolution “was adopted without statutory authority, and is in violation of the governor’s executive order.”
Huckelberry said this is different.
“Masks are proven statistically to actually reduce infection rates,” he said. Huckelberry brushed aside claims by some who dispute that conclusion.
“There’s a reason why everyone in an operating room wears a mask,” he said. “Masks are proven to be very low-cost effective measures at preventing infections
And the curfew?
“It was just another layer” to help protect public health, Huckelberry conceded. “It did not have the scientific evidence behind it.”e