The Pima County Board of Supervisors voted 3-2 along party lines this week to update health code regulations for restaurants and bars to reduce transmission of COVID-19, but three state lawmakers are asking the Arizona Attorney General’s Office to step in and force the county to rescind the rules.

State Sen. Vince Leach and state Reps. Mark Finchem and Bret Roberts say that the county is exceeding its authority in creating the regulations and have asked Attorney General Mark Brnovich for an investigation.

"We've seen throughout this crisis how important it is to balance health concerns with the need to reopen businesses and get Arizonans back to work," Leach said in a prepared statement. "Gov. Ducey and the Legislature have been working with experts to find that balance and determine the best course of action for the entire state. It is unfortunate that Pima County is taking actions that are not consistent with the state. The cumbersome regulations in its proclamation will not facilitate an easy reopening for businesses."

Members of the county’s Back to Business Bars and Restaurants Task Force said that while they helped create guidelines and best practices, they didn’t think their recommendations would become regulations with fines attached.

“We offered to help be a part of this from the very beginning and now we’re the ones being targeted with fines,” said Ray Flores, owner of El Charro and its related restaurants. “If it’s really about public health and human safety, then all businesses should have to go through this. This is not a restaurant problem, this is a human population problem.”

Pima County Administrator Chuck Huckelberry said the goal of the task force "is to help the business community get back to business, not hinder it."

Huckelberry said the county had heard mixed reaction from the public since enacting the new regulations earlier this week.

"We have received considerable feedback from some businesses and the public that the adopted measures don’t go far enough, that they’re too liberal and should be more restrictive while the pandemic is ongoing," Huckelberry said. "We have also heard from some businesses and some members of the public that they go too far, are impractical, or that we should let individual businesses decide what’s safe for their business operations during a pandemic. We appreciate all of this feedback and will be making amendments to the minimum public health safety standards as necessary to continue to strike the balance of protecting public health and getting people back to work in a safe manner during a pandemic." (See Huckelberry's full comment at the bottom of this article.)

The task force, which was composed of eight restaurant and bar owners as well as five county health department staff members, was organized late April with the job of crafting guidelines and best practices for bars and restaurants in the county. Among the recommendations: wellness and symptom checks; cloth masks and gloves to be worn by all staff; patrons exhibiting signs of COVID-19 are not permitted on premises; and no more than 10 diners allowed per table, as well as no bar-top seating.

Flores said not only it was disappointing to see such a highly regulated industry such as food service now being threatened with fines, but restaurateurs were being expected to act as pseudo-healthcare workers with no training and very little guidance on how to proceed.

“Nobody in the restaurant business wants to make anyone sick,” Flores said. “ At the same time, nobody in the restaurant business is a healthcare professional.”

One of the main regulations concerning task force members and restaurateurs alike is the requirement to take wellness/symptom checks of “all restaurant employees, vendors, contractors, third party delivery service workers as they arrive on-premises and before the opening of a restaurant.”

Dan Bogert, COO of the Arizona Restaurant Association and a task force member, said he doesn’t disagree with temperature checks for restaurant employees. However, checking third-party delivery drivers can pose potential problems for restaurant operators, said Bogert.

“Our main concern on some of the things they put forward are mainly safety-related and liability-related,” Bogert said. “When you’re talking about doing temperature checks of people that aren’t your employees...we have no structure around temping a contractor or a third-party delivery driver.”

Sean Humphrey, co-owner of John Henry's Cocktail Bar and a task force member, took issue with the “No Bar-Top Seating” rule for bars, even though the county is allowing parties of 10 or fewer in restaurants. He said he sees no difference between 10 people sitting around a table or across a bar.

“I don’t know where exactly they came up with the number of 10 per table. If 10 people are sitting next to each other at the table, how is that somehow safer people being spaced out every other stool at a bar?” Humphrey said. “This is not a one-size-fits-all kind of thing.”

Other requirements concerning task force members and restaurateurs are supplying staff with cloth masks and hand sanitizer when they are in short supply these days and the Pima County Health Department doesn’t have any to share with reopening businesses.

Josh Jacobsen, owner of three southside Lucky Wishbone restaurants and ARA board member, said he sat in on a few calls with the task force. Developing new regulations for enforcement was never the goal, Jacobsen said. Developing best practices for the service industry was.

“When they changed them from recommendations to regulations, I think that came out of left-field for a lot of people,” Jacobsen said. “I think the recommendations are in the right direction for what we should all strive for. But when they turned them into regulations that are completely unattainable in some cases, it puts restaurants at such a disadvantage.”

Dr. Bob England, director of the Pima County Health Department, clarified how the county health department would enforce the new guidelines approved by the Pima County Board of Supervisors in his video public health update on May 14.

"We are not going to have people sitting in the bushes while you eat," England said. "If there's one thing I've learned about our registered sanitarians and others in the year I've been here, it's that they want to help businesses do the right thing."

Education and assistance will be the health department's focus while the new regulations are in place, England said. The regulations will stay in place until the pandemic is declared over by Pima County's chief medical officer, Dr. Francisco Garcia.

"Actual enforcement of any kind is going to be a last resort," Dr. England said. "We want all of us to continue to do what we know we should to prevent transmission in this disease."

The Pima County Board of Supervisors also adopted a set of temporary regulations to help restaurant owners in unincorporated Pima County expand their outside dining area while under new indoor occupancy restrictions during Wednesday's emergency meeting. Parking spaces, sidewalks and vacant lots could be used as additional seating upon approval from Pima County Development Services to ensure the areas are cleared for dining service. County officials said they are planning on providing same-day review and evaluation of temporary outdoor expansion requests in an attempt to help restaurants reach full capacity—or as close as possible—as quickly as possible.

UPDATE: Pima County Administrator Chuck Huckelberry has responded to restaurateur concerns and the legislators' request for an Attorney General investigation:

Pima County’s Back To Business (PCB2B) effort has brought together more than 120 members of the business and faith community and teamed them with County and regional public health experts to craft a plan for safely reopening businesses and other public venues in Pima County during the COVID-19 pandemic, which is ongoing.

The goal of this effort is to assure the public that it is safe to resume dining, recreating, exercising and lodging in Pima County because the County, through its statutory duty to protect the public health, has established, in cooperation with the business community, a set of minimum standards that will help protect workers and the public from the transmission of COVID-19.

The goal is to help the business community get back to business, not hinder it. However, with that in mind, this has been a fast-moving process, and since the Board of Supervisors, via Proclamation, adopted these initial standards on May 13, we have received considerable feedback from some businesses and the public that the adopted measures don’t go far enough, that they’re too liberal and should be more restrictive while the pandemic is ongoing. We have also heard from some businesses and some members of the public that they go too far, are impractical, or that we should let individual businesses decide what’s safe for their business operations during a pandemic.

We appreciate all of this feedback and will be making amendments to the minimum public health safety standards as necessary to continue to strike the balance of protecting public health and getting people back to work in a safe manner during a pandemic.

I share the Board’s concern for the public health of the entire community and will, therefore, be asking the Board of Supervisors at its meeting of Tuesday, May 19, to consider at least three clarifying amendments:

• That drive-thru and counter service restaurants are not required to have call-ahead or reservation systems. This was never our intent, but recognize the adopted protective measures were unclear on this point. We will ask the Board to make it clear.

• That restaurant staff should not have to try to determine if a prospective patron is ill with COVID-19. Instead we will ask restaurants to install posters at their entrances stating that anyone with COVID-19-like symptoms should not enter. The symptoms will be spelled out on the poster.

• And we will ask the Board to rescind the civil penalty and instead ask that if inspectors find restaurants who are not complying with all of the protective measures that such will be posted to the County’s website similar to the results of normal health inspection reports for all restaurants.

As for the complaint filed by members of Legislative District 11 with the Attorney General, Pima County has vetted all of the adopted minimum public health safety standards with the County Attorney and believe that these standards fall well within the County’s statutory requirement to protect the public health."