Fayetteville Mayor Lioneld Jordan / Courtesy photo
A new Fayetteville law will require wearing face coverings in businesses to help limit the spread of COVID-19.
The City Council on Tuesday voted 8-0 to pass an ordinance that requires face masks with some exceptions. The new law also includes several measures that aim to provide support to businesses who are adapting to COVID-19, as well as an emergency clause to put the requirement into effect immediately.
The mask requirement hinges upon the idea of public areas.
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 offices that don’t regularly see the public would not need masks except for in communal areas. In a retail setting, everyone in a public facing area would be required to wear a mask. Businesses would also be required to refuse service to anyone not wearing 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 that need them, setting up a hotline for businesses that have questions about implementing their own health directives or modifying their businesses to adapt to social distancing guidelines, and launching a public safety campaign.
The measure comes on the heels of a letter from Mayor Lioneld Jordan who urged business owners to place signs at entrances notifying customers that they should wear a mask inside their buildings. He also encouraged businesses to refuse service to anyone not wearing a mask.
The letter was in response to 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 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 be lifted at different times depending on the region, he last week announced that the entire state would move into Phase 2 as a whole.
An online petition launched on June 15 urged the City Council to strengthen Jordan’s advice, and an official proposal soon followed from Council Member Matthew Petty.
During Tuesday’s council discussion, the proposal had unanimous support, and some were quick to offer themselves as honorary co-sponsors of the measure, including Council Member Sarah Marsh.
Most said it was an easy decision.
Council Member Sarah Bunch said she thinks people want to do what’s right and it’s not been made abundantly clear that wearing masks is the right thing to do. She said the proposal would remove all ambiguity.
Council Member Sonia Gutierrez agreed, and said she’s heard from people in other Northwest Arkansas cities who said they would even prefer to leave their own towns and shop in Fayetteville if this law were put into effect.
Fayetteville City Attorney Kit Williams interjected and said it’s unclear whether municipalities can require the use of masks in Arkansas.
Williams said it hasn’t yet been litigated, but he believes state law prohibits 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 determining public safety regulations.
The statute gives the board control of “all matters pertaining to the health of the citizens.” It 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 health 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.
Council Member Mark Kinion said he understands all that, but sometimes it’s important to do the right thing, and this is one of those instances.
Council Member Kyle Smith thanked Kinion for bringing up the idea of doing the right thing. He said Northwest Arkansas has been left alone to fend for itself and he hopes other nearby cities join Fayetteville in passing similar measures.
Mayor Jordan said he’s tried to work within the confines of what the state allows, but it has been difficult. The rise in virus cases has been troubling, he said. At the end of the day, Jordan said the priority of a city is to make sure its citizens are safe. He said he stands by the proposal and thanked the council for considering it. He said it will likely cost more than $100,000 as budgeted in the ordinance, but he’ll make it work.
City Attorney Williams said personally, he believes everyone should be wearing masks during the pandemic, but he doesn’t think that the governor or state attorney general will simply allow Fayetteville to make its own rules.
“If you want to pass this, I can’t recommend it as your City Attorney,” he said. “I hope it would not be challenged if this is passed, but I suspect it probably would.”
Petty said he appreciated Williams’ advice, 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.”
