Q&A of the Day – Is there any legal recourse for South Florida businesses during lockdowns?
Each day I’ll feature a listener question that’s been submitted by one of these methods.
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Today’s entry: Brian, the latest decision by Palm Beach County to disallow a full Phase 2 reopening is about the final straw for my family and our business. First, they shut down our business. Second, they’ve forced my wife, who assists with our business ordinarily, into becoming a homeschooler rather than being able to work the temporary job she’d been working because our business isn’t allowed to reopen. Third, the county has chosen a reopening plan that’s different than the state’s and still won’t allow us to reopen. We don’t have the money for an attorney, but my question is whether it's legal for the county to keep us closed down when we should be eligible to open according to the state standards?
Bottom Line: I’m sorry and I hear you. One of my earliest thoughts during the lockdown, is that if I still owed my first business, I don’t think I would have been able to survive for more than a couple of months. Nearly six months later – I can only imagine how stressful and challenging this has been and continues to be. That this reopening process – at every level of government – is completely arbitrary is that much more frustrating. The answer to your question isn’t what you want to hear. Yes, it’s legal under Florida law.
Your specific situation hasn’t been fully litigated in a state court as of yet, but three similar lawsuits have previously been found in favor of local governments. Each of the other cases involved mask mandates. Florida law cited in those cases pertains to your situation. Independent of the specificity of the pandemic, under the Supremacy Clause in the Constitution; governments at the state and local level can’t grant more authority than is allowed under federal law, however every subsequent government can become more restrictive with laws and ordinances provided they don’t infringe on one’s Constitutional rights. Mask challenges have been Constitutional right challenges and what you’re describing potentially enters that territory as well but there’s an asterisk in this conversation. During times of declared emergency broad executive authority is granted at the federal, state and local level. Early in the pandemic I addressed the topic of Florida’s laws regarding use of executive authority during times of declared emergencies. Here’s what Florida’s statutes state pertaining to Emergency management powers of the Governor-
The Governor is responsible for meeting the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the Governor may assume direct operational control over all or any part of the emergency management functions within this state, and she or he shall have the power through proper process of law to carry out the provisions of this section.
Pursuant to the authority vested in her or him the Governor may issue executive orders, proclamations, and rules and may amend or rescind them. Such executive orders, proclamations, and rules shall have the force and effect of law.
A state of emergency shall be declared by executive order or proclamation of the Governor if she or he finds an emergency has occurred or that the occurrence or the threat there of is imminent.
If the Governor identifies an emergency; it can be declared, and he is able to enact emergency measures. Generally undefined emergency measures. This model is also the basis for counties and municipalities in South Florida. Thus, they’re granted broad authority to dictate more stringent lockdown measures than the state for as long as we’re operating under a state of emergency. If we want this to change, we need to have our state legislature change the law. I recently discussed this topic with state Senator Manny Diaz Jr., and will advocate for a new law limiting executive authority within the state going forward. It’s evident the existing law wasn’t created with a six-plus month emergency declaration in mind. The current emergency declarations at the state and local levels are the longest in Florida’s history. If you feel similarly, I’d encourage you to contact your state representative and senator to advocate for limitations on executive authority as well. That won’t help you reopen your business today, but it can help all businesses from facing a similar fate in the future.
This is yet another reminder that elections have consequences and often it’s the ones closest to you geographically which have the biggest impact on your daily life.