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Fayetteville Mayor Lioneld Jordan is asking businesses to use face coverings to help limit the spread of COVID-19, and local lawmakers will soon consider a proposal to make it a requirement.

In a letter addressed to business owners on Monday, Jordan requested that signs be placed at entrances to local businesses notifying customers that they should be wearing masks before entering. He also encouraged businesses to refuse service to anyone not wearing a mask.

The letter comes in the midst of a spike in COVID-19 cases in Arkansas that’s been led by a surge in the northwest region.

The spike has not affected Gov. Asa Hutchinson’s decision to further remove restrictions on non-essential businesses. The state moved into the second phase of a reopening plan on Monday (June 15) in the midst of a swelling of cases that began in late May and further increased in the first week of June when positive cases increased by 31% in just seven days.

Washington and Benton counties have for weeks led the state in new cases, and although the governor had previously said it was possible that restrictions could lifted at different times depending on the region, he last week announced that the entire state would move into Phase 2 as a whole. The regional trend continued Monday as the statewide case count increased by 416 overnight, including 126 cases in Washington County and 53 cases in Benton County.

Despite Jordan’s advice, there is no local or statewide mandate that requires the use of face coverings.

It’s also unclear whether municipalities can even enact measures to require masks.

“It’s not a black or white question,” said Fayetteville City Attorney Kit Williams.

Williams said it hasn’t yet been litigated, but he believes state law preempts cities from passing their own safety measures during a pandemic. He referred to a 2017 state statute that hands full power to the state Board of Health in public safety regulations.

The statute gives the board control of “all matters pertaining to the health of the citizens” of Arkansas. The measure also gives the board control of “all sanitary and quarantine measures for dealing with all infectious, contagious, and communicable diseases.”

Williams said while the state does give local lawmakers great powers in determining their own rules, those laws cannot be in violation of state statutes. And because the statute specifically uses the word “all” he believes that’s an implication that the legislature meant to prohibit cities from passing their own rules.

“Since the governor and Department of Health have clearly stated that they will not require masks, then if the City Council tried to enact their own rule I’m afraid that would probably not be upheld in court,” Williams said.

In his letter to the business community, Jordan said he understands the implications that could arise from requiring masks.

“I know that loss of business and reduced ability to operate has created a great financial burden for you,” Jordan wrote. “I am also aware that potentially turning away customers who refuse to wear masks may increase that burden. But I call upon you to send a strong message that each of us must do our part to reduce this threat to our community.”

An online petition launched this week by For Fayetteville calls on the City Council to strengthen Jordan’s recommendation, regardless of whether state law might prohibit such action. As of Tuesday morning, 630 people had signed the petition.

City Council Member Matthew Petty said he’s been working since Monday to draft a proposal to address the issue (see the proposal here). The idea, he said, is to indeed require face coverings in many situations, but the plan also includes several measures that aim to provide support to businesses adapting to COVID-19.

The mask requirement would hinge upon the idea of public areas, Petty said.

For example, a mechanic shop would be required to use face masks in its customer service area, but not in the actual workshop area. Employees who work in small offices that don’t regularly see the public would not need masks, Petty said, but in a retail setting, everyone in a public facing area would be required to wear a mask.

Penalties would only apply to businesses that are willfully neglecting the rule, and would not be enforced on those who are making an attempt to stay in compliance.

Other areas of the proposal include creating a budget to provide free masks for businesses and customers who need them, setting up a hotline for businesses who have questions about implementing their own health directives or modifying their businesses to adapt to social distancing guidelines, and launching a public safety campaign.

Petty said he knows the city attorney is concerned about Fayetteville enacting its own safety regulations, but his hope is that state officials will understand the importance of implementing additional measures in an area where COVID-19 cases are surging.

“I think that what we’ve seen is that the governor has been responsive to the stated intentions of other communities and I would hope that he would be responsive to our intention,” said Petty. “I think it’s better for us to focus on what we can do right now and if the governor is opposed to us making a meaningful impact then he should have to justify why he wants us to stop.”

Petty said he plans to walk his proposal onto Tuesday night’s City Council meeting agenda which is set for 5:30 p.m.

The meeting will take place virtually on the Zoom app. Registration is available online, but the meeting will also be broadcast live on the city’s YouTube channel.