Marfa uses state-sanctioned loophole to mandate masks

“It’s on the business," said Marfa Police Chief Steve Marquez. "The business has to tell them to put a mask on."

MARFA — The City of Marfa voted on Thursday to require businesses to mandate face coverings for employees and customers in any place where maintaining a constant six feet of distance is not possible. The city’s ordinance stuck closely to the wording of Bexar County’s mask ordinance and passed unanimously in an emergency city council meeting on Thursday, June 18.

Earlier this year, Governor Greg Abbott prevented local governments from requiring its residents to wear a mask, essentially striking down orders like the one City of Presidio passed in April that said residents must wear masks in public.

Then last week, Bexar County Judge Nelson Wolff poked around and found a loophole in Governor Greg Abbott’s executive orders, discovering that while local governments could not require their residents to wear masks, they could require local businesses to require masks.

City Attorney Teresa Todd urged council at the emergency meeting to stick as closely to Bexar County’s ordinance. “We don’t want to stray too far because this actually has the governor’s blessing,” she told Marfa’s council at the evening Zoom meeting.

Governor Abbott said Wolff “finally figured it out” and that requiring businesses to require masks was the “plan all along,” despite never indicating that loophole previously.

“I don’t believe that was his original intent,” Todd said, noting that he is now “coming under some heat” as cases rapidly rise in many parts of the state and local governments feel powerless to implement controls.

“As I think y’all know, it’s been very frustrating for cities to not have any enforcement authority when it comes to masks, since it’s been shown they do help prevent the spread of COVID,” the attorney said.

Governor Abbott has previously fought local governments who have put in ordinances that are stricter than his executive orders. His office warned Presidio County at the end of April that they could not keep hotels, motels and short-term rentals closed as a precaution against the pandemic, indicating his orders superseded theirs.

At the Thursday meeting, Councilmember Buck Johnston hoped to strike the part of the ordinance that implied masks weren’t required if six feet of distance could be maintained, saying that it would just cause more people to act defiantly and challenge enforcement, making it harder for businesses to enforce the mask requirements.

But council bristled, including Councilmember Raul Lara who called the proposed ordinance “an excellent, excellent start,” and urged council to not stray from it, for fear that the whole ordinance would be struck down and once again, no requirements would be in place.

Justice of the Peace David Beebe spoke up to remind the council that any business owner can choose to be more strict than the ordinance, because they have the right to set their own rules and refuse service to customers who didn’t meet their requirements.

Along with requiring face coverings for employees and customers, the ordinance has some reasonable exceptions. Children under 10 are not required to wear masks, nor those with written proof of a health issue. Masks are not required while exercising outside, driving alone or with others in your household, while banking (as it interferes with security surveillance), while pumping gas and importantly, while consuming food or drink. Masks are still required at food and drink establishments when entering or exiting the establishment or using facilities such as restrooms.

“What we want is for the police department to be there to back these businesses up,” Attorney Todd told the council. In Marfa, that could look like a business owner warning a maskless person to put on a face covering or leave the premises. If they refused, the police department could be called in to issue a criminal trespass warning. If the person attempted to return to the premises, they could face trespassing charges.

“It’s on the business; the business has to tell them to put a mask on. If they get in their face, won’t leave, it can be a criminal trespass, or if they’re worse, a disorderly conduct,” said Marfa Police Chief Steve Marquez in an interview this week.

“It’s not about whether the person is wearing a mask anymore, it’s about whether they engaged in criminal behavior,” according to Todd. Under the order, it is businesses who can face penalties though, not individuals. While individuals can be charged for unlawful actions that stemmed from enforcement of the order, businesses can face up to $1,000 fines for each day they do not require employees and customers to wear masks.

So far, Marfa police have had a couple complaints about one business, and the city is working with its management to implement the mask requirements. The ordinance went into effect Monday and there is a five-day grace period to work with businesses to require masks.

Additionally, the city is holding a workshop tonight at 5:30 p.m. on Zoom to discuss the ordinance, inviting the public to weigh in.

On the night it passed, there were nine cases of COVID-19 in Marfa, with one being contracted due to traveling out of the area, while the eight others were from the disease spreading within the community, often from unidentified sources.

Those who have coronavirus are ordered by the Department of State Health Services to stay at home and quarantine for two weeks while they recover, and until they can test negative for the virus. But face coverings are useful because some who have COVID-19 may not show any symptoms but are still able to spread the disease to people who could be seriously harmed by contracting coronavirus.

“The cloth face cover is meant to protect other people in case you are infected,” the Centers for Disease Control and Prevention explains on their site. Because there is no vaccine, preventative measures are society’s only defense against the pandemic’s spread.

“You could spread COVID-19 to others even if you do not feel sick. Everyone should wear a cloth face cover when they have to go out in public, for example to the grocery store or to pick up other necessities,” the CDC site says. Still, face covering isn’t foolproof in preventing spread. “Continue to keep about 6 feet between yourself and others. The cloth face cover is not a substitute for social distancing,” the site reads.

Mayor Manny Baeza urged council to pass it as is, speculating that there would be blowback from the state if Marfa chose to make the ordinance any stricter, and saying the city could “tweak whatever needs to be fixed on this ordinance” at the Thursday night workshop. “We can do this little trial run and see what we need to modify.”

The public hearing and regular meeting will take place at 5:30 p.m. tonight, and residents can dial in at (346) 248-7799 or watch online at:

https://us02web.zoom.us/j/86169906767?pwd=L0ZwWEdVVzVpM3pkblY2bjdvNlVHZz09

Meeting ID: 861 6990 6767

Password: 008534


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