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Court halts Pima County from enforcing overnight curfew

Court says the curfew is in violation of Gov. Ducey's executive order
Pima County Superior Court
Posted at 12:34 PM, Jan 20, 2021
and last updated 2021-01-20 20:20:35-05

TUCSON, Ariz. (KGUN) — Pima County has been forced to drop it’s 10pm curfew. That’s the result of a court order won by businesses owners who say they’re hurt by the early closing times. The county does plan to appeal.

Bars and restaurants say the 10pm shutdown cuts off most of their income and singles them out over other businesses that get most of their customers before the curfew kicks in.

A Superior Court Judge granted an injunction Tuesday night on the 10 p.m. to 5 a.m. curfew in Pima County, saying it violates an executive order issued by Gov. Doug Ducey.

The Pima County Board of Supervisors voted to implement the curfew last month in an effort to curb the spread of COVID-19. Several weeks later, a group of businesses in Tucson filed a lawsuit against the county, arguing the county lacked the legal authority to issue such a curfew.

Pima County Superior Court Judge Kellie Johnson sided with business owners, noting a March 2020 executive order from Gov. Ducey that declared a statewide emergency. That order contains a provision prohibiting counties, cities, towns and local governments from issuing "any order, rule or regulation that conflicts with or is in addition to the policy, directives, or intent of this executive order, including but not limited to any order restricting persons from leaving their home due to the COVID-19 public health emergency."

The conservative Goldwater Institute joined the lawsuit on behalf of the businesses.

Goldwater attorney Timothy Sandefur says, “The County does have authority to impose curfews in certain emergency situations there, but Arizona law only allows counties to impose emergency curfews to prevent violence or breaches of the peace and it doesn't allow curfews, in the case of a pandemic.”

Businesses said they were living up to other county requirements like distancing but the County’s Chief Medical Officer Doctor Francisco Garcia says Supervisors imposed the curfew because people were not being careful.

“We know that based on the surveillance that our county inspection team did that, that the bars that were operating. After 10 o'clock, there was a substantial amount of non compliance with the kinds of measures that we've recommended all along.”

Judge Johnson's ruling prohibits the county from enforcing the curfew, but also orders the businesses who filed the lawsuit to pay $10,000 to the county for court costs and additional contact tracing efforts that may be needed with the curfew halted.

Click here to read the full ruling from the court

Pima Supervisors Chair Sharon Bronson says the county will appeal and hopes people will curfew themselves in the meantime.

She released this statement:

Pima County is obviously disappointed in Judge Kellie Johnson’s Preliminary Injunction restricting the County Health Department from enforcing a 10 p.m. to 5 a.m. curfew throughout Pima County.

The Board of Supervisors imposed the curfew Dec. 15, 2020, in an effort to control the spread of COVID-19. The Board of Supervisors has authorized the County Attorney to appeal the ruling. It is the County’s firm belief that state law empowers the Health Department to take specific actions such as the curfew to mitigate and halt the spread of infectious diseases.

In the meantime, Pima County Chief Medical Officer Dr. Francisco Garcia urges all businesses to continue to voluntarily adhere to the curfew and limit gatherings. The Resolution passed by the board stated the curfew would be lifted when the COVID-19 infection rate in the County fell below what is considered "substantial spread" of the disease, or 100 cases per 100,000 people.

The current infection rate is 10 times that at 1,000 cases per 100,000 and County hospitals remain full, their resources and staff strained to the limit. Since Jan. 1, 2021, 22,700 people have fallen ill with COVID-19 in Pima County and 431 people have died.”