Tucson Wildlife Center executive director Lisa Bates nudges two great horned owls into the air to exercise them as they recover from injuries on Tuesday. (Video: Henry Brean / Arizona Daily Star)

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.

He said the curfew may conflict with the executive orders issued by Gov. Doug Ducey as part of his declared state of emergency during the pandemic, which say 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 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 coronavirus,” 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 of Supervisors’ 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.

People are still allowed to go to work and shop for groceries and at drugstores. Similarly, they remain free to go to drive-up windows at fast-food outlets no matter the hour.

County Administrator Chuck Huckelberry said the curfew 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.

Roberts said that goes to his point about harming business. “Bars and restaurants have employees that are dependent upon that income,” he said.

In an act to remember the lives lost to the Coronavirus disease (COVID-19), the Cathedral of Saint Augustine's bell rang for 30 minutes just after noon, on Dec. 30, 2020. In a media advisory released on Tuesday (Dec. 29), The Archdiocese of New York announced their churches would be ringing bells the following day to remember the 335,000 lives lost to COVID-19 pandemic in the United States. Many other diocese and religious institutions followed suit in taking part including the Diocese of Tucson. The bell that rang in Tucson's Cathedral of Saint Augustine is the only remaining physical bell in the church and is used for funerals. It rang for 30 minutes just after noon. (Josh Galemore / Arizona Daily Star)

Some are privately owned by people who have their life savings tied up in the business, Roberts said.

“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 can be accomplished by the power of the Health Department to revoke county-issued operating permits or licenses of businesses that do not comply, he said.

Complicating the legal issue is Ducey’s 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 Republican governor mandated in May.

An opinion by Brnovich one way or the other would have no legal force or effect. Even if Brnovich were to conclude the county is acting illegally, it would require a court action to overturn the curfew.

Roberts suggested 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.

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