MEMPHIS, Tenn. — Dear Chairman Billingsley,
I am in receipt of your request for guidance on a proposed ordinance to, among other things, mandate that all residents and visitors within Shelby County wear facial masks or coverings while participating in permitted activities outside of their homes in public areas. It is clear that the Commission is motivated by a true and urgent concern for the citizens of Shelby County, however, the proposed ordinance is preempted by the Shelby County Health Department’s Health Directive and Governor Lee’s Executive Order No. 30 (“EO30”).
EO30 provides in part:
13.c. Local orders in six counties with a locally run county health department (Davidson, Hamilton, Knox, Madison, Shelby, and Sullivan). The six locally run county health departments in Davidson, Hamilton, Knox, Madison, Shelby, and Sullivan counties shall have authority to issue additional orders or measures related to the containment or management of the spread of COVID-19, which may permit to a greater degree, or restrict to a greater degree, the opening, closure, or operation of businesses, organizations, or venues in those counties, including those listed in Paragraph 11 of this Order [listing continued closures of certain businesses], except no local official or local governmental entity shall issue an order or measure regarding places of worship. Nevertheless, this Order shall govern on all subjects it concerns, except to the extent that the locally run county health department has issued differing local orders or measures regarding the opening, closure, or operation of businesses, organizations, or venues as provided for in this Paragraph 13.c.
The named six counties, including Shelby County, are granted local oversight authority through their health departments because they are differently situated than the rest of Tennessee: they each have a large urban area and a local health department that works with the Tennessee Department of Health (TDH). The effect of this order is simply that, in any of the six named counties, either Governor Lee’s executive orders apply or the local health department’s directives apply during this particular state of emergency. There is no provision for anything else. These local health departments work in collaboration with the TDH, and together, they are tasked with the inordinate responsibility of developing an appropriate response to the COVID-19 pandemic. This task includes properly informing individuals and businesses about their role in assisting in reducing the spread of this deadly disease. This should be done without causing confusion amongst the visitors and citizens about what safety measures they should be adopting. For the forgoing reasons (and by EO30’s provision), local orders that are not issued by the Shelby County Health Department are preempted.
Please note that the current Health Directive No. 3 does not require individuals to wear face coverings in all public situations. The ordinance requires it. Rather than unintentionally cause confusion, the Commission’s desire to assist and partner with the Health Department should be further explored. For example, the Commission could consider a resolution that acknowledges the singular role of the Health Department and requests that business owners team up with the Health Department to help educate citizens about the usefulness of face coverings and other safety measures designed to limit the spread of the disease.
