There were indications Wednesday, June 17, that the city’s new mask ordinance will face challenges.

The measure took effect with Tuesday’s passage by the City Council, requiring that masks or face coverings be worn in most public indoor public places in the city.

However, the ordinance won’t be enforced immediately and state Sen. Brian Kelsey asked for an opinion from the state attorney general.

City mask requirement clears final hurdle

”We are still reviewing the ordinance to fully understand how the council would like it enforced,” Memphis Mayor Jim Strickland said Wednesday afternoon in his daily email update on the pandemic. “However, we are hopeful that citizens will comply out of care and compassion for their fellow Memphians.”

City Chief Operating Officer Doug McGowen made much the same point with council members before Tuesday’s vote, saying it would take some time to figure out how enforcement of the ordinance would work.

McGowen said Memphis Police would probably be involved “very, very little” while city code enforcement officers would likely enforce the ordinance through their regular visits to businesses to make sure they are following the rules for their reopenings under the countywide “Back to Business” plan.

Within minutes of Strickland’s email, Kelsey, a Germantown Republican, announced he is seeking a legal opinion from the Tennessee Attorney General on the ordinance.

In an email, Kelsey said the mandate “raises serious constitutional questions.”

“I think it would be prudent for the state Attorney General to weigh in on this issue before the ordinance becomes final,” Kelsey said.

In his formal request to Tennessee Attorney General Herbert Slatery, Kelsey seeks a legal opinion on whether the ordinance violates state laws, the Tennessee Constitution or the U.S. Constitution.

“In particular, please review the state statutes regarding the ability of municipalities to pass criminal ordinances during a state-declared emergency and the division of emergency powers between the governor and county health departments and municipalities,” Kelsey wrote.

Public health experts reiterate importance of wearing a mask

The council approved the ordinance, by council member Dr. Jeff Warren, on a 9-4 vote on its third and final reading Tuesday. The council also approved what are known as “same-night minutes” on the item at the end of the Tuesday council session.

The frequently used parliamentary maneuver speeds up the approval of the minutes of the meeting on select items. Minutes are normally approved at the next scheduled council meeting.

When the minutes of the meeting are approved by the council, the actions in the minutes become official. Same-night minutes effectively means an item becomes official at the end of the meeting at which it was approved by council vote.

Same-night minutes is a procedure usually used to approve receiving or appropriating funding so the administration can use it immediately.

In this case, Warren wanted a quick effective date because of the pandemic.

Warren said Wednesday the broader goal was to “let people know so that they know this is serious.”

“What we’ve done hasn’t worked,” he said of measures that stopped short of a requirement.

While there aren’t any penalties in the ordinance, Warren said the council could add fines later by resolution

The Shelby County Health Department’s countywide health directive on the pandemic does not require face masks or face coverings. It only recommends them.

Asked about the recommendation and the city requirement Wednesday by Shelby County commissioners, Haushalter said the county attorney’s office has told her only state health officials can require masks.

Businesses may soon get grade for how well they comply with face masks

She said the local health department could issue a requirement and there could be an appeal to the state.

“If the state supports it, we can do that,” Haushalter said. “Otherwise, we have to stay with the language we have.”

She downplayed any difference between the directive and the ordinance.

“We are all in agreement … that masks should be worn in public,” Haushalter said. “The ultimate question becomes what we can enforce and what we can’t enforce.”