Mayor May Not Have Had Authority To Shut Down Bars and Restaurants; Federal Dollars Pending @ Tomorrow’s Closed Council Meeting

 

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First published: 3/17/2020 at 5:00 p.m.

Phoenix Mayor Kate Gallego may not have had the authority to close Phoenix bars and restaurants Tuesday when she issued her “State of Emergency” declaration earlier this afternoon, however her decision may be tied to federal funding for hospitality industry workers.

As of 4:45 p.m., according to staff from 6 of Phoenix’s 8 council district offices, no formal vote had been taken to suspend civil rights for the public and Phoenix business owners.

The Mayor went live in an address to the City around 1:00 p.m. M.S.T., in which she said she “made the decision in consultation with the City Council.”

The closure, which Gallego said would begin tonight at 8 p.m., may not take legal effect unless a quorum (legal majority) of the City Council meet to approve it.

The Mayor gave no indication when bars and restaurants would reopen, but the move comes on the anxious heels of cities across the nation.

If not official, however, fines or penalties against individual members of the public and business owners may not survive legal challenges in court.

“There has not been a vote,” said Michael Petersen-Incorvaia, Communication Specialist for District 4 (Midtown/Melrose) Councilwoman Pastor’s Office, at about 2:30 p.m.

Representatives from Council Offices for Districts 1, 3, 5, 6, and 7 confirmed that no vote had taken place to support closing down restaurants on the busy St. Patrick’s Day holiday.

Petersen-Incorvaia said the Mayor was seeking Council support by phone Tuesday in order to secure federal funding that could be disbursed to hospitality workers through the Arizona unemployment system. 

“Hospitality workers are the Councilwoman’s family,” said Petersen-Incorvai. “She wants the (money) guaranteed or she will not support the (shutdown).” 

None of Phoenix’s 8 Council members were available for comment before the publication of this article (T.M.L. left messages for all of them) though some Staff reported the Mayor had been in contact with them.

No Staff stated the Mayor had the authority, nor could they refer to a City or State law that allowed for such a declaration.

Arizona mayors may not have the authority to shut down businesses or initiate restrictions of civil rights on their own, not even in an emergency, as is common in many of the other states that have suspended civil rights like New York, California, Oregon, and Washington. (Click here for Phoenix City Code) (Click here for Arizona Revised Statutes).

Arizona operates under what is commonly referred to as the “weak mayor” form of government, preventing unilateral decisions without the express consent of the Council.

Unlike the Mayor, Arizona Governor Doug Ducey may have the authority to issue a state wide “health emergency” in order to close schools and government offices, and to release federal funding to help displaced hospitality industry workers. (Click to read more.)

President Donald Trump declared on March 17 that people should not gather in groups of more than 10, but he did not issue an Executive Order mandating such as law.

“Of course The Councilman would prefer the whole bar and restaurant situation to be on a voluntary basis,” said Erin, a Staff member who works for District 6 Councilmember Sal DiCiccio. “All of the sudden we were alerted at the same time as the public.”

The issue is currently scheduled #88 at tomorrow’s closed Council Meeting.

The public will not be allowed to attend, but should be able to listen and submit comments online (see below).

No one from the City Attorney’s Office was available to provide a legal justification for either the ban nor the closed meetings.

Meanwhile, normal St. Patrick’s Day Celebrations were already expected to suffer due to widespread encouragement by all levels of government for citizens to self-quarantine.

The Seventh Avenue Merchant’s Association issued a statement yesterday requesting the public support neighboring bars and restaurants by ordering take-out and buying gift cards (see below.)

Arizona law allows for take-out liquor sales under certain conditions.

“We are trying to encourage people to support small businesses as much as they can by ordering take-out, and maybe buying gift cards,” Said Raquel, with District 3 (north Phoenix) Councilwoman Debra Stark’s Office. “We definitely understand the need for social distancing, especially with vulnerable people.”

Nothing in the Arizona Open Meeting Act (as of today) explicitly allows closed meetings to take place, however officials are justifying the measure based on the predictions of the spread of the Corona Virus.

According to the Attorney General Handbook on Open Meetings, the Council may declare an “emergency” to discuss issues related to the “actual emergency” but may not conduct regular business outside the physical view of the public.

There are 87 other items on Tuesday’s regular City Council Agenda.

(Sidenote: Corona Virus, a compound noun, should be two separate words according to the rules of English, despite misspellings at even the highest level of government.)

The Arizona Republic Newspaper reported that the other Arizona cities to issue similar states-of-emergency are Tucson, Mesa, Flagstaff, and Gilbert, and the Tempe City Council is considering the matter this week.

Mesa’s Mayor John Giles issued a similar proclamation shortly after Gallego.

It was unclear from media reports Tuesday if the Mesa City Council was involved (read here.)

T.M.L. reached out to the Phoenix Mayor’s Office and the Public Information Office to provide the legal citations for the closure and the closed meetings.

No calls were returned before close of business Tuesday.

The Arizona Ombudsman-Citizen Aide’s Website details pending statewide legislation to allow Arizona governments to circumvent open meeting law when discussing “safety precautions” in schools, but not cities generally.

As of today, no deaths have been reported linked to Corona Virus in Arizona.

T.M.L. Filed a formal complaint against the City of Phoenix for violations of the Open Meetings Act with the Arizona Ombudsman-Aide’s Office (see text below.)

Emergency Notice from City of Phoenix website:

UPDATE: March 18, 2020 City Council Formal Meeting​ 

  • ​​Per the most recent guidelines from the federal government that no more than 10 people should be gathered in a room at the same time, no residents will be allowed in the Council Chambers.​​
  • Residents can submit comments on any item on the March 18, 2020 Formal City Council meeting at councilmeeting@phoenix.gov or call with comments before 2 p.m. Wednesday, March 18, at 602-262-6001. 
  • Residents can watch the Council meeting live streamed at phoenix.gov or Phoenix Channel 11. 
  • Residents can call and listen to the meeting by following these steps:
    • Dial 602-666-0783​
    • Enter the Meeting ID 625711874#
    • ​Press # again when prompted for attendee ID​
  • For additional information, please go to https://www.phoenix.gov/newsroom.

Greetings from SAMA!

To our neighbors, friends, and business community:

The impacts of COVID-19 are being felt throughout the entire Melrose neighborhood and as business owners on 7th Ave we are taking the necessary steps to protect each other. As we receive recommendations from the government and health officials our businesses and surrounding neighborhoods will be forced to make some difficult decisions and be forced to refrain from future events, programming, and business operations.

The Melrose business district has developed a vibrant culture and while we cannot absolutely ensure that people will stay home, we do ask that our businesses and neighbors exercise caution when considering a visit to any public space. This includes staying home if you feel any flu-like symptoms, if you’ve recently traveled, or are a member of a vulnerable population.

Many of our businesses depend on the steady support of the surrounding neighborhoods to pay their bills, to support their staff and their families. While we are uncertain about what the near future holds, and how to mitigate the challenges facing our community, we do know we are a resilient community and now is the time where we can come together in solidarity.

In an effort to support the businesses who make our community great here are some suggestions on how you can help:

Buy a gift card to your favorite restaurant or retail store to use when you can go out again.
Make an additional donation to your favorite art, science and/or cultural nonprofit. All these entities are experiencing losses in revenue due to declining attendance.
Follow each business and other community organizations in the Melrose District so that you can stay informed of business changes and community changes.
Remain connected with us via social media and email to learn more ways you can help.

While fear can be contagious, so can kindness and optimism. Please practice the recommended distancing and remain engaged with phone calls and texts to your community to check in and let them know you are there.

As soon as we receive more information from medical experts and government officials to ensure that the situation is under control, we will work diligently to help our merchant community get back to business.

Sincerely,

SEVENTH AVENUE MERCHANTS ASSOCIATION

to councilmeeting
SUBMITTED TO councilmeeting@phx.gov :
I applaud several Council offices for their transparency yesterday. I am a bilingual, Phoenix native who has worked in courtrooms, newsrooms, classrooms, healthcare, hospitality, and real-estate.
If you don’t protect my freedom, you have no right to protect my life.

I am no stranger to Phoenix City Government. Please allow me to express my extreme disappointment for holding meetings closed to the public. This is not only a direct violation of Arizona law, more importantly, it is a direct violation of democracy.

Unless you can prove that an individual has Corona Virus (statistical projections are not fact evidence) you have no right to exclude those individuals from physically observing your legislative process.

Government comes from the consent of the governed. You’re not leaving us many reasons to consent if you continue in a closed manner. Now, more than ever, is the time to take a stand for individual freedom, or else, what is the point?

 

Complainant information
Name: Brian Mori
Email: thismelroselife@gmail.com
Phone: 6025751170
Address:
4330 n. 5th ave #218
Phoenix, Az 85013

Agency: City of Phoenix

Complaint:
Arizona law does not allow for closed meetings outside the physical view of the public, and digital or telephonic observation does not replace in-person observation so long as there is room for the public to observe. It is my right to take the chance of catching a disease, as it is every other person’s right, if democracy is that important to us as individuals. In fact, it has not been proven that any of the Council, Staff, nor myself have the disease. Any persons who factually have the disease may be legally prohibited from attending, but scientific projections are not fact. The law has clearly been violated here.

What resolution are you looking for?
A statement of public apology for violating both the spirit of democracy and the law. Protecting individual life must be equal to protecting individual rights to observe democracy, or neither exists.

What steps have you taken to resolve the problem with the agency?
I am not required to take steps to hold public officials accountable to the law. However, I have pointed this out to several Council Offices.

Do you have a case number, license number, or other identifier with this agency?
City of Phoenix Mayor’s Office