PHOENIX — Gov. Doug Ducey isn't going to try to block Tucson and Pima County from enforcing a mandatory curfew even though it is in direct violation of his own executive order, at least not now — if ever.
And that could embolden other Arizona communities to strike out on their own.
"He disagrees with the policy and he doesn't think it's the right approach," said press aide C.J. Karamargin following Tuesday's 3-2 vote by the county supervisors to impose a countywide 10 p.m. to 5 a.m. curfew until the county's COVID-19 infection rate subsides.
But for the moment, Ducey is going to simply disregard the fact that Tucson more than a week ago and now Pima County have gone their own way on a local curfew. Asked specifically whether his boss would challenge those moves, Karamargin said "we have not made a decision yet."
The county edict, which follows a similar one imposed by Tucson more than a week ago, directly conflicts with a May 12 order issued by Ducey under what he said are his emergency powers.
"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.
He did back off a bit in June, allowing local governments to impose mask mandates after Tucson Mayor Regina Romero threatened to go ahead on her own and provoke a legal fight.
County Administrator Chuck Huckelberry told Capitol Media Services that the ordinance is not an effort to pick a fight with the governor over the scope of his powers. He pointed out that Ducey enacted his preemption in May.
"Our view is that we're in an entirely different place than in May with regard to the level of infection and the community spread of COVID-19," Huckelberry said. And what that means, he said, is that the county, looking at the issue from a public health perspective, does not think that Ducey's order applies.
In fact, Huckelberry said, things are even different from when the governor allowed local governments to impose requirements on people to wear masks in public.
At that time, he said, the county had a "positivity rate" of 253 for every 100,000 residents, a figure that represents the number of people testing positive for the virus.
"Today our positivity rate for the first three days of this new week is at 1,131," Huckelberry said.
"It's a completely different environment," he continued. "Our hospital capacity is probably less than maybe Maricopa and our infections in the daily count don't seem to be abating."
Huckelberry said the action is being taken under the county's public health powers. He said that agency has the power to regulate — and, if necessary, revoke the county-issued operating permits or licenses of businesses that do not comply.
County officials said that is more practical than trying to enforce a curfew on individuals.
Huckelberry said people will still be able to go out and shop for food and drugs. And they'll be able to drive to the take-out windows at a fast-food outlet to grab a burger or taco, even at 2 a.m.
But what they won't be able to do, he said, is hang around bars and restaurants past curfew. Huckelberry said that as far as county officials are concerned, a restaurant after 10 p.m. is little more than a bar which is seen as a place where the virus is easily spread.
Aside from being able to go out foraging for food, the ordinance also does not apply to people going to and from work, attending religions services, making commercial deliveries or caring for a family member, friend of animal. It also does not apply to those who are homeless.
The new order is in addition to the decision by the supervisors move earlier this month to require people to wear face masks in public.
Individuals who do not comply can face a $50 fine. And businesses that don't require the use of masks by employees and patrons are subject to fine of up to $500.