By Howard Fischer
Capitol Media Services
PHOENIX -- A state legislator is asking Attorney General Mark Brnovich to investigate whether Pima County is acting illegally in establishing and maintaining a curfew.
Rep. Bret Roberts, R-Maricopa, is questioning the authority of the county supervisors to tell people they cannot be out between 10 p.m. and 5 a.m. except for certain specified reasons. That, Roberts said, may conflict with the executive orders issued by Gov. Doug Ducey as part of his declared state of emergency which says that no local government can have rules or regulations that are stricter.
Roberts, who said two thirds of his legislative district is in Pima County, said he believes that the supervisors are acting without legal authority.
"I fully support the personal choices and efforts made by individuals to help curb the public spread of the corornavirus,'' he said. "But I absolutely reject government mandates that erode personal liberty or punish businesses who may already be financially struggling as it is.''
The board's 3-2 vote came after county officials cited a surge in the number of COVID-19 cases and the threat of hospitals in Pima County running out of space. It directs the health department to enforce the curfew until the rate of spread of the virus drops below a certain level.
It is not an absolute ban.
People will still be able to go to work and shop for groceries and drugs. Similarly, they remain free to go to drive-up windows at fast-food outlets no matter the hour.
County Administrator Chuck Huckelberry said it is aimed primarily at bars as well as restaurants which, after 10 p.m., he believes are little more than bars where the virus can spread easily.
That goes to Roberts' point about harming business.
"Bars and restaurants have employees that are dependent upon that income,'' he told Capitol Media Services. And Roberts said some are privately owned by people who have their life savings tied up in the business.
"What Pima County has done is put something in place that's preventing those individuals essentially from providing for their families and their livelihoods,'' he said.
Nor does the fact that it's only a partial curfew convince him that the order is proper.
"Any limitation that's being put in place that's over and above what is stipulated shouldn't be put in place,'' Roberts said, calling the order "a clear case of dangerous government overreach.''
Huckelberry's position is that the board, through its powers over public health, has inherent powers to take the actions necessary to curb the spread of disease. Enforcement, he said, can be accomplished by the power of the health department of revoke county-issued operating permits or licenses of businesses that do not comply.
Complicating the legal issue is that Ducey directive.
"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,'' the governor mandated in May.
An opinion by Brnovich one way or the other has no legal force or effect. And even if Brnovich were to conclude the county is acting illegally, it would require a court action to overturn the curfew.
Roberts suggested that he was looking for guidance to "help inform me and other legislators whether legislative action is needed.''
There is no legal deadline for Brnovich to act.