Local officials debate fine for business violating mask orders

As coronavirus infections pick up in Texas, the situation at Dollar General an example of how quickly circumstances are changing in Texas — including state and local directives.

MARFA — At the start of this week, Marfa city leaders were preparing to fine Dollar General over violations of Marfa’s mask ordinance. The store wasn’t requiring customers to wear masks, officials said, violating a city order mandating just that.

But on Monday, Presidio County Judge Cinderela Guevara passed her own emergency order for the whole county, including Marfa. And while that order has all the same mask requirements as Marfa’s order — if anything, it was even stricter — that order, like Marfa’s, also came with a five-day grace period.

As a result, city leaders this week were re-evaluating whether to fine Dollar General, or whether it was even in their power to do so. But Guevara said in an interview on Tuesday that she never meant to delay Marfa’s implementation of its rules.

That wasn’t my intention,” Guevara said. And almost immediately after learning that city leaders were interpreting her order in such a way, she passed an amended order, clarifying that her countywide rules do “NOT supersede the City of Marfa and the City of Presidio Face Mask Ordinance(s).”

On Tuesday evening, Marfa’s emergency order was posted outdoors at Dollar General. Inside, all customers and employees were wearing masks.

A manager for Marfa’s Dollar General did not respond to a request for comment on the dispute with the city. Dollar General’s corporate office did not respond to multiple requests for comment.

As coronavirus infections pick up in Texas, the situation is an example of how quickly circumstances are changing in Texas, up to and including state and local directives. The shifting statewide rules have been confusing to ordinary Texans — and at times, even officials have been at odds about what the state rules are, or what emergency powers they do or don’t have.

The status of local mask requirements in Texas was confusing long before Marfa and Presidio County got involved. Earlier this year, Governor Greg Abbott overturned facemask requirements in a variety of cities and counties, including in the City of Presidio.

Then, last month, officials in Bexar County tried a loophole, requiring not that residents wear masks, but that businesses require their customers to wear masks.

Observers expected the state to overturn the rules — but to the surprise of almost everyone, Governor Greg Abbott said such rules were “authorized” and part of the “plan in place all along.” Cities across the region and state responded by implementing identical or similar rules, including in Marfa (where masks are effectively required at businesses) and in Alpine and Presidio (where signs specifying whether masks are required are themselves required).

At a city council meeting last week, Marfa city officials discussed the reception of their order. To the delight of city leaders, almost every establishment was complying — including the post office, which, as a federal entity, could have argued it was exempt. And while officials worried they might be inundated with complaints or concerns, only one person — a resident who said she thought she was “within my rights to not wear a mask” — called into the virtual meeting to complain.

There was one exception, though: Dollar General. “It’s the only business we’ve been getting calls on,” said Marfa Police Chief Steve Marquez. A manager at the store, he said, did not want to “enforce mask wearing,” and the store had not put up city signs announcing the new rules.

Both Marfa and Presidio County’s mask order includes a $1,000 fine for businesses that don’t comply. The fine doesn’t apply to ordinary citizens, whom Governor Abbott has made clear cannot be criminally or civilly punished for violating coronavirus safety rules.

When Marfa first passed its mask ordinance, some officials fretted over the possibility of fining businesses for unruly customers — a detail Chief Marquez addressed by advising businesses to get trespass orders against non-complying customers. But according to Marfa city officials, the situation at Dollar General had little of this troubling nuance. Instead, it was a store where management — and not just customers — was allegedly breaking public safety rules.

As recently as Friday, a fine against Dollar General seemed almost guaranteed. Marfa police confirmed to The Big Bend Sentinel they had received numerous complaints about the store.

Teresa Todd, city attorney for Marfa, said the city had likewise received an “avalanche” of reports about it. On Friday, she was getting ready to write up a formal letter to Dollar General’s corporate office, detailing the city’s complaints. Citing state directives, she said that corporate — and not the local branch — would be liable for the fine.

The ground started shifting on Monday, though. Eleazar Cano, the county judge for Brewster County, adopting Bexar County’s rules (which effectively require masks) over Alpine’s laxer ones (which just require a sign).

Presidio County followed suit, adopting its own version of Marfa and Bexar County’s measure. In the process, as Marfa officials saw it, the county superseded city authority and extended an additional grace period..

A lack of clear information from the state has led to this confusion at all levels of Texas government. Texas Monthly has described Abbott’s directives to local leaders not as clear-cut rules, but as a “riddle” for officials to solve.

As the coronavirus crisis builds, it’s become increasingly unclear what Abbott is and is not allowing local officials to do. On Friday, Abbott delivered another surprise to the state as he abruptly shuttered bars statewide. With coronavirus rates hitting crisis levels in Texas, the governor appears to be considering political questions just as much as legal ones when it comes to the ins-and-outs of his previous statewide directives.

On Tuesday evening, City Attorney Teresa Todd learned that Dollar General had now posted a sign about Marfa’s ordinance. At press time, though, the question of whether Dollar General would see any fines was still very much an open one.