The fate of Pima County’s 10 p.m. curfew – and perhaps bars that say the COVID-19 safety measure is killing their business – is in a judge’s hands after attorneys for the county and several bars that sued to overturn the curfew made their cases during a hearing on Friday.
Pima Superior Court Judge Kellie Johnson said she would take the bars’ motion for a preliminary injunction halting enforcement of the curfew under advisement over the long weekend and make a ruling by Tuesday, Jan. 19.
An injunction or temporary restraining order would halt the curfew until a full trial is held on the merits of the case.
The owners of Cobra Arcade Bar, HighWire Lounge, The Maverick and Union Public House filed a lawsuit on Jan. 5, alleging that Pima County acted without legal authority when the Board of Supervisors imposed the 10 p.m.-5 a.m. curfew on Dec. 15 on a 3-2 vote.
In a hearing on Friday, Jan. 15, an attorney for the bars and restaurant plaintiffs said the Pima County Board of Supervisors overreached its legal authority because it conflicts with executive orders by Gov. Doug Ducey barring local governments from adopting stricter restrictions, specifically preventing people from leaving their homes.
Ducey’s orders have stopped short of mandating a statewide curfew or public mask-wearing.
Lawyer Zachary Cohen said the curfew also is unreasonable, unconstitutional and discriminatory and is literally killing his clients’ business, even though the county has no evidence the curfew has been effective in combating the spread of COVID-19.
“Many of these businesses are likely to fail and close in short order,” Cohen said. “One of or more of these businesses will not survive unless this preliminary injunction is granted.”
Cohen said the county has no authority to contravene the governor’s order, citing state laws he said give the state Department of Health Services the primary responsibility.
“The authority to respond to public health emergencies flows through the governor and the state department of health,” he said.
But Deputy Pima County Attorney Andy Flagg told the court that state law gives the county broad authority over public health matters and that Ducey in his orders has attempted to usurp that authority.
“It’s pretty nonsensical to say that the county has public health authority, except in an emergency,” Flagg said. “The reality is, the counties are the dominant front-line health authorities in Arizona, their purpose is to deal with emergencies like this, and the county has some data showing this may be having some effect.”
The county’s sole witness, Pima County Chief Medical Officer Dr. Francisco Garcia, said scientific studies show that curfews are among the tools public-health authorities can use to limit the pandemic’s spread, citing a scientific analysis of many studies published in the journal Nature.
“We do not take these steps lightly,” Garcia said, adding that he was unaware of any previous county public-health curfews. “We use these actions when all other tools are exhausted and we can do so in a lawful fashion.”
Citing figures showing COVID-19 infections have risen more across the rest of the state than in Pima County in recent weeks, Garcia said he believes the curfew has helped.
“What you’re starting to see is a plateau, and perhaps the beginning of a downslope,” he said. “I believe we have good evidence that this curfew has had a salubrious effect.”
But Cohen said the county has no proof that COVID-19 spreads any faster after 10 p.m. and noted that the plaintiff bars have continued their safety measures and not allowed patrons to violate mask policies before or after 10 p.m.
“There is no rational basis that COVID-19 spreads more after 10 o’clock than before 10 o-clock,” he said. The effectiveness of the county’s curfew at helping limit COVID’s spread is uncertain and likely small, and could actually be driving more people to large private events which are considered unsafe, he added.
But Cohen said the impact of the curfew on the plaintiff businesses is huge, Cohen said, citing the testimony of bar owners and employees who all said their businesses would close if the curfew continued much longer.
Grant Krueger, who owns Union Public House, and two sister restaurants at St. Philip’s Plaza as well as The Maverick on East Tanque Verde Road, said the curfew unfairly penalized businesses like his that stay open late, even though they have shown they can operate safely during legal hours.
The curfew “would certainly kill The Maverick,” Krueger said.
The notion that the bars could go out of business and quickly reopen is untrue, he added.
“I think that’s a terrible misconception – those closures would cause us to lose a large portion of our staff, and that’s a huge loss,” he said, adding that relations with landlords and vendors would also be lost.
