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Ducey OKs bill allowing Arizona businesses to opt out of mask mandates

Unwilling to let counties and cities maintain mandates for face coverings, Gov. Doug Ducey signed legislation that allows Arizona businesses to ignore state local regulations requiring masks be worn. Immediately after signing the bill, the governor said the single-sentence bill "may have unintended consequences" and said state legislators were committed to fixing a "technical oversight."

Though Ducey signed the bill late Friday afternoon, the law will not go into effect until 90 days after the end of the current legislative session, which is scheduled to end April 24 — putting the end of county and city mandates as early as July 23.

Pima County Administrator Chuck Huckelberry called the move "shortsighted," and said the legislation was a "significant overreach."

"The county's resolution requiring face masks remains in effect and will remain in effect," county officials said. Representatives of state hospital systems also said they were "disappointed" in Ducey's decision to sign the bill.

Just two weeks ago, noting that the state had enjoyed 10 weeks of declining COVID-19 cases — down from nearly 12,500 cases on January 4  — Ducey issued an executive order declaring that Arizona cities and counties could no longer mandate masks. He said that "unlike some other states" Arizona never issued a statewide mask mandate, and instead "encouraged personal responsibility with an aggressive educational campaign." This resulted in more "widespread mask usage than states with mandates," he said. 

"Some local governments have implemented 'mandates,' however, they have rarely, if ever, been enforced," the governor said, adding that under his order "those local mandates will be phased out." 

However, officials across the state, including the Pima County Board of Supervisors and Tucson Mayor Regina Romero, argued that the county and city should, and legally could, maintain mask mandates, setting up a legal fight between local and state officials.

On Tuesday, the Arizona Attorney General's Office said that Pima County's mandate remains in effect despite the governor's attempt to overrule it.

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Ducey's signing of HB 2770 adds another twist the the controversy.

"Notwithstanding any other law, a business is this state is not required to enforce on its premises a mask mandate that is established by this state, a city, town or county, or any other jurisdiction of this state," reads the single line of the new law.

"People shouldn't be out celebrating," said Pima's Huckelberry. The mandate will remain until at least July, and it could last until further into the summer because the state legislature has yet to agree on the state's budget. "Hopefully, we'll be out of this phase of the pandemic then," he said. 

"It's almost an anti-business legislature," he said. "Consumers make the decisions, and our experience has bene that people who do not feel safe don't frequent businesses," he said. 

Huckelberry added that the county would continue to issue health advisories to reduce the risks associated with the pandemic, which has killed more than 17,000 people in the state, including 2,367 people in Pima County since the pandemic began in March 2020. 

At its peak, on Jan. 4 there were 12,448 confirmed cases of COVID-19, and on a single day in January, 177 people died statewide. Overall, more than 845,000 Arizonans were diagnosed with COVID-19 since March, according to figures from the Arizona Department of Health Services. 

The decision comes as Arizona has enjoyed a 13-week decline in COVID-19 cases, though in the last week there was a marked uptick in the percent positivity of COVID-19 tests. From March 12, the number of confirmed cases of COVID-19 compared to the total number of COVID-19 test rose slightly from 3.3 percent to 3.8 percent for the week of April 4, 2021, according to data from ADHS. However, the number of COVID-19 cases, deaths and hospitalizations continue to decline, and the state continues to expand the number of vaccinations. By Friday, the state has administered more than 3.9 million vaccines, and more than 1.6 million people are fully inoculated against COVID-19. 

Overall about 34 7 percent of the state's population have received a COVID-19 shot. In Pima County, about one-third of residents have been vaccinated, using about a half-million doses. 

Huckelberry also said that the legislation was a "significant overreach," noting that the bill appears to undermine other hazard mitigation reasons for wearing masks, including the removal of asbestos, and the requirement for doctors and nurses to use masks in operating theaters.

"It's typical of a lack of foresight," he said. 

The use of masks in the county has "been our strongest and most inexpensive effort to mitigate the spread of COVID-19, and to do away with that is really short-sighted," Huckelberry said. "It's important that public health not be a political  football, and all this legislature does is make it one." 

In his signing letter, Ducey admitted that HB 2770, was "well-intentioned, but due to an error in drafting may have unintended consequences." 

Calling this a "technical oversight," Ducey wrote that "some rational mask requirements that are not related to the spread of COVID-19 may not be enforceable," he said. "The state needs to be able to enforce long-standing workplace safety and infection control standards unrelated to COVID-19." 

He also repeated his argument that because cities like Tucson and Phoenix preferred not to fine businesses, but — as Pima County officials put it, engage in "education campaigns" — they had left the responsibility up to local businesses. 

"Our largest cities opted not to enforce their mandates, leaving the responsibility up to local businesses," Ducey said. "I understand the concern and heartache this caused for many of these businesses," he said. 

Ducey said that the bill's sponsor, Republican state Rep. Joseph Chaplik, agreed to submit a new bill that would fix the issues Ducey pointed to.

"With his commitment to fix this oversight, I am signing this bill, ensuring that our small businesses will no longer be required to enforce mandates imposed on them by their cities who are choosing not to enforce it themselves," Ducey wrote. 

"While this is obviously relevant for the current pandemic, it would also be the law in future pandemics, including possible flu outbreaks," said county officials. "Face masks are proven to work in slowing the spread of contagious diseases in which the contagion is spread by expiration of droplets." 

"The county's resolution requiring face masks remains in effect and will remain in effect even when the new state law becomes effective 90 days after the close of the legislative session," the county said, adding that the Health Department "continues to encourage local businesses, irrespective of this action by the legislature and the governor, to make the moral and responsible choice to protect their employees and their patrons by requiring the wearing of face masks until the pandemic is over." 

In a statement, Health Systems Alliance of Arizona—which represents 80 percent of the state's health-care providers—said they were "disappointed" in Ducey's decision to sign the bill.

"Critical to our efforts have been the local, state and federal COVID-19 mitigation strategies, particularly mask requirements, to slow down the spread of virus throughout our community and reduce the demand on our health care delivery system," the group said. "We appreciate Arizona businesses that continue to require masks for the safety of their employees and customers. We urge all Arizonans to wear a mask in public, follow CDC guidelines and get the COVID-19 vaccine as soon as possible." 

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Ariz. Gov. Doug Ducey during a press conference at the University of Arizona on March 24, 2021.

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