A Northeast Arkansas state representative has announced that businesses in the region are planning to move forward with a Phase II reopening – independently and in violation of state directives.
Arkansas is currently on Phase I of the reopening process, established as part of President Donald Trump’s Open Up America Again plan. Gov. Asa Hutchinson had previously discussed the possibility of opening up specific regions for Phase II rather than taking a statewide approach. However, he announced on Monday, June 8 that the state would not be taking a regional approach, although the option was still available.
On Monday, June 8, Arkansas State Rep. Dan Sullivan used his social media account to post a letter, addressed to Gov. Asa Hutchinson, informing him that “many in our region” are planning to move into Phase II on Friday, June 12. Sullivan did not identify any of the businesses or restaurants that are reportedly planning to move forward to Phase II, citing the business owners’ fears of repercussions.
In his letter, Sullivan characterized the Arkansas Department of Health directives as “excessive…as they apply to restaurants, small businesses, and non-profits in our region.” He claimed that the directives are “confusing, inconsistent, impractical, arbitrary, randomly enforced, unfairly target select industries and cause fear and frustration for consumers and businesses alike.”
Please like and share!I met with multiple Jonesboro restaurants this morning to listen and problem solve. From our…
Posted by Dan Sullivan on Monday, June 8, 2020
Sullivan did not list any specific examples for the directives in the letter. However, in a side note to the letter, he wrote that restaurants are one of the industries that he says are “unfairly” and “clearly” targeted by the directives.
Speaking to Arkansas Money & Politics by phone, Sullivan framed the reopening as a constitutional issue and as a corrective to government overreach.
“First of all, I think there’s overreach with the governor to do what he’s done. There’s a question of having power and authority. Though he has the power, I don’t think he has the constitutional authority to do what he’s done.”
“I think that constitutionally, the governor has stepped over what our God-given rights are. The Constitution says that we have the right to assemble, I have the right to provide a job for myself and food for my family. Then the government steps in and stops that,” he said. “I don’t think the government has the authority to do that.”
Hutchinson declared a public health emergency for the COVID-19 pandemic on March 11 – a declaration which was later amended on March 26 and extended on May 5. Using an executive order, Hutchinson declared that the “Secretary of Health, in consultation with the Governor, shall have sole authority over all instances of quarantine, isolation, and restrictions on commerce and travel throughout the state.” According to Hutchinson’s executive order, the public health emergency is supported by the multiple Arkansas codes. The order cites A.C.A. 12-75-114, which details the governor’s disaster emergency responsibilities, and A.C.A 20-7-110, which details the State Board of Health’s duties in the study and prevention of diseases.
A.C.A. 12-75-114(e) allows for the governor to “suspend the provisions of any regulatory the provisions of any regulatory statutes prescribing the procedures for conduct of state business, or the orders or rules of any state agency, if strict compliance with the provisions of any statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.” A.C.A. 20-7-110 authorizes the state Board of Health to have direction of all sanitary and quarantine measures dealing with infectious diseases as well as control for preventing or suppressing disease spread. This code gives the board “direction and control of all matters of quarantine rules and enforcement.”
Using this order, Hutchinson and Arkansas Department of Health Dr. Nate Smith subsequently issued multiple directives and guidance in an attempt to contain and mitigate the impact of COVID-19 in Arkansas. These directives included limitations on business operations, shutdowns for schools and businesses and gradually, the lifting of restrictions for businesses and other institutions across the state.
Sullivan disputed the governor’s authority to issue the directives concerning businesses during the pandemic. He cited an attorney’s letter, penned by Jenny Holt Teeter, an attorney with Gill Ragon Owen, that was sent to Hutchinson after the state made and lifted restrictions on the dental industry in Arkansas. According to Teeter, the directives issued by Hutchinson and Smith have created “confusion and disorder” in the dental industry. She also claimed that the directives issued by Smith were “illegal on their face” because “creating the power to control the disease does not create the power for the Secretary to make rules with an enforceable penalty.”
Restaurants in Sullivan’s district are willing to obey “common sense” directives, he said. Under the current Phase I directives, restaurants are allowed to admit dine-in customers for up to one-third capacity and diners are required to wear masks until the time of their meal. The Phase I directive are, to Sullivan and reportedly to some Jonesboro-area restaurants, “onerous.”
“When we come in with a heavy hand, that’s a different story,” Sullivan said. “Our local restaurants – they don’t have lobbyists. They don’t have an association. They don’t attorneys. They can’t afford to fight this in court. They can’t afford to fight it and win, much less fight it and lose.”
“You can’t operate your business on a third capacity…They’re slowly going out of business.”
Sullivan compared the Jonesboro-area restaurants’ situation with that of Temple Live, a Fort Smith entertainment venue that attempted to stage a concert on May 15 – three days before the state allowed indoor venues to host events. Temple Live announced the concert and received cease-and-desist letters from the state. Later, the venue had its liquor license suspended before it complied with the cease-and-desist order and canceled the May 15 date.
“Those guys had no due process, they had no hearing…” Sullivan claimed.
The restaurants planning to step up their reopening are concerned about similar treatment to that of Temple Live, Sullivan said, and are unwilling to speak out publicly on the matter. Sullivan told AMP that this was why he decided to take the lead on addressing the matter of reopening ahead of schedule.
When asked what the consequences for the restaurants would be, Sullivan said he didn’t know. He did admit the possibility that the restaurants could be risking their licenses.
“Any venture such as the restaurant are going to take have to assume the highest risk,” he said. “So, the highest risk would be similar to Temple Live. They could lose their license.”
Hutchinson was asked about Sullivan’s letter during a press conference in Pine Bluff on Tuesday. He largely side-stepped the question, stating that he has received complaints that the state is going both too slowly and too quickly on reopening.
“I haven’t spoken with him. I get letters from both sides. I get letters saying you’re going too fast, slow down, don’t open things up. I get letters that say you’re going too slow, you have to open it up quicker. That’s just one of the many letters that I have received. Dr. Smith and I try to make decisions based upon the public health guidance, based upon the data that we see but also what is needed for the uniqueness of our state. We will continue to do that…”
However, when asked if there would be consequences for businesses that violated state directives, Hutchinson warned that businesses could potentially lose their operation licenses.
“Many of the businesses are licensed, whether it is a restaurant or whether it is a different type of facility,” he said. “If they have a license, then if you don’t follow the public health guidance, that could jeopardize your license.”
“I understand that people – some people want to accelerate, as I said some people want to go slower. We still have a rising number of cases here in many parts of Arkansas, and we want to make sure that we’re taking the right steps to control it to the extent that we can.”
Sullivan warned that if any of the restaurants faced repercussions that he planned to take legislative action.
“If the Health Department comes in and cites anybody, then I’m going to pursue a legislative committee to have them come and explain their legal grounds for telling people they have to have six-foot distance or why they let you go into a convenience store without a mask but you can’t go into a restaurant and let them explain their legal reasoning for doing that. We’ll see where that goes. I don’t know. I think the onus is on the Health Department to work with our restaurants,” he said.
Guidelines, such as six-foot distancing, were established by the Centers for Disease Control (CDC). The CDC released guidance for states at the beginning of the pandemic, designed to help limit the spread of the virus, and this guidance is not federal or state law in-and-of itself.
Sullivan has represented the 53rd District in the state House of Representatives since 2015. His district includes portions of Craighead County. He is currently running unopposed for the District 21 state senate seat after defeating former state Sen. John Cooper in the Republican primary in March.
READ MORE: Hutchinson Making Announcement on Phase II Reopening on Wednesday
This article makes use of the Arkansas Code Annotated, which is published by Lexis Nexis.
A.C.A. § 12-75-114 (Lexis Advance through 2020 First Extraordinary Session)
A.C.A. § 20-7-110 (Lexis Advance through 2020 First Extraordinary Session)
