phillips & hunt COVID-19 Coronavirus Pandemic Legal Advice: Authority of the Governor of Florida
COVID-19 Coronavirus Pandemic Legal Advice: Authority of the Governor of Florida
Can the Governor Really Shutdown All Business and Force Quarantine the Entire State:
Due to the Coronavirus, the Governor and most local authorities have issued a Public Health State of Emergency. Specially, Governor Ron DeSantis issued Executive Order 20-51directing the State Surgeon General to declare a public health emergency and declaring same on his own behalf on March 1, 2020.
Similar State of Emergency proclamations have been issued across the country.Two extreme examples are California and Pennsylvania, where the Governors of both states have issued Stay Home Orders and closed all non-life sustaining businesses. As a Floridian, the obvious questions became: Can they really do that? Could this happen here?
Both questions are basically the same constitutional question and are determined by each state.We will only look at the situation of it happening here in Florida.
First, you must look to the State Constitution and enumerated statutes governing the power granted to a sitting governor. Under the Florida Constitution, there is no such Article, Section, or Amendment that grants such power as to completely shut down a state’s businesses or require its citizens to quarantine.
However, States have police power functions to protect the health, safety, and welfare of persons within their borders. The power to take such measures as quarantining its citizens is reserved to the states under the 10th Amendment to the US constitution.
And under Article IV, Section 1, the Governor shall have the power to call out the militia to preserve the public peace, execute the laws of the state, suppress insurrection, or repel invasion. Commonly referred to as the Martial Law provision, this gives the Governor the ability to call in the National Guard to enforce the laws during a State of Emergency.
Looking separately to the enumerated statutes, a State of Emergency grants broad power to the Governor of Florida, which is outlined and specifically enumerated in FS 252.36. It is especially important because it allows the Governor to respond to emergencies and meet the needs of the citizens of Florida without getting bogged down by red tape and bureaucracy.
Some notably important aspects of it are allowing the Governor to suspend regulatory statutes if they would in any way prevent, hinder, or delay necessary action in coping with the emergency; control ingress and egress to and from an emergency area, suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles and; direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he/she deems this action necessary for the preservation of life or other emergency mitigation, response, or recovery.
What’s notably missing from the extensive list is the ability of the Governor to order the entire state to self-quarantine or to shut down all businesses not deemed life sustaining.
The closest the statute comes is subsection (5)(k), which allows the Governor to, “Take measures concerning the conduct of civilians, the movement and cessation of movement of pedestrian and vehicular traffic prior to, during, and subsequent to drills and actual or threatened emergencies…as provided in the emergency management plan of the state and political subdivisions thereof.”
While it looks like the Governor is not granted that broad power to quarantine the entire state, the government may, under Florida Statute 381.0011 and 381.00315, quarantine suspected carriers of a virus or disease.
The State Health Officer, upon declaration of a public health emergency, may force quarantine or isolate individuals who present a severe danger to public health due to a communicable disease with a significant morbidity or mortality. Individuals who refuse to be vaccinated or treated will be forced into isolation or quarantine and if there is no practical method to isolate or quarantine the person, the State Health Officer may use any means necessary to vaccinate or treat the individual.
To further complicate things, Rule 64D-3.038, Florida Administrative Code, further discusses public health emergencies and implements section 381.00315(1)(c)4 and provides: “Quarantine orders shall be issued by the State Health Officer…include an expiration date or specify conditions for ending of quarantine; and restrict or compel movement or actions by or regarding persons, animals or premises consistent with the protection of public health and accepted health practices….”
Based on the plain language of the statutes and case law, it is difficult to determine if the Governor of Florida has the legal authority under a State of Emergency to order the same or similar restrictions on people and businesses as has happened in California and Pennsylvania.
While the Governor certainly has the power to force quarantine or isolate infected individuals, there has never been an attempt in Florida to completely quarantine the entire state. The ambiguities and lack of direction in the statutes, leave it open to interpretation which may allow it to happen in the short term until the courts open back up and the suit could be filed. The Governor would likely rely on the State of Emergency backed by the broad powers under Article IV, Section 1 to enforce any such actions.
Under Florida Statutes 381.0011 and 381.00315, the State Health Officer, upon declaration of a public health emergency, may force quarantine or isolate individuals who present a severe danger to public health due to a communicable disease with a significant morbidity or mortality. It states:
4. Orderingan individual to be examined, tested, vaccinated, treated, isolated, or quarantined for communicable diseases that have significant morbidity or mortality and present a severe danger to public health. Individuals who are unable or unwilling to be examined, tested, vaccinated, or treated for reasons of health, religion, or conscience may be subjected to isolation or quarantine.
It allows gives powers to a law enforcement officer under s. 381.0012 to:
(d) “Quarantine” means the separation of an individual reasonably believed to have been exposed to a communicable disease, but who is not yet ill, from individuals who have not been so exposed, to prevent the possible spread of the disease.
Individuals who refuse to be vaccinated or treated will be forced into isolation or quarantine and if there is no practical method to isolate or quarantine the person, the State Health Officer may use any means necessary to vaccinate or treat the individual.
A violation of a rule to isolate or quarantine, or any requirement adopted by the department pursuant to a declared public health emergency, commits a misdemeanor of the second degree. A second degree misdemeanor carries a maximum sentence of 60 days incarceration and 6 months probation.
However, the language says the government has discretion (“may,” not “shall”) to a force a quarantine of an individual (not an entire city, county or state) and only someonepresents a severe danger or who was believed to be exposed.
As such, the law has limits.
The National Conference of State Legislatures has a handy state-by-state chart of quarantine laws here.
Due to the difficulty of navigating the aforementioned issues that will or may arise, combined with the ever changing rules relating the Courts, the necessity to hire expert legal counsel to navigate you through these waters and the necessity to stay calm and attempt to be as reasonable and rational as possible is important.
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