With hurricanes pounding Florida’s coasts every year, being in a State of Emergency is nothing new for Floridians. But hurricanes are tangible and discreet, their strength can be measured, their potential danger is obvious, and the duration of the emergency can be projected. And it’s because of these tangible characteristics that we rarely question a Governor’s authority to declare a State of Emergency.

However, the Covid-19 coronavirus has presented not just Floridians, but Americans with a completely unprecedented threat. Unlike a hurricane, you can’t see the virus coming, there is no cone of uncertainty to avoid, you don’t know how it will affect you, and, most troubling, we can’t predict how long the virus will remain a threat.

And it’s precisely because of these lack of tangible characteristics that many people have questioned the wisdom of Governor DeSantis’ decision to issue Executive Order 20-52 declaring a State of Emergency in Florida and the legality of his subsequent decision to issue Executive Order 20-68 ordering that all bars, pubs, and nightclubs close for thirty days, beachgoers comply with CDC social distancing guidelines, and restaurants limit capacity as part of Florida’s State of Emergency.

What is a State of Emergency?

A state of emergency is a determination by the Governor that a natural, technological, or manmade threat may cause, or actually has caused, substantial injury or harm to the population or substantial damage to or loss of property. See 252.34(4), Fla. Stat.

Authority to Declare State of Emergency

As authority to declare a State of Emergency, Governor DeSantis cited Article IV, Section (1)(a) of the Florida Constitution and Chapter 252, Florida Statutes. However, Article IV, Section (1)(a) of the Florida Constitution does not specifically authorize a governor to declare a State of Emergency, rather it generally provides that:

“The supreme executive power shall be vested in a governor… The governor shall take care that the laws be faithfully executed, commission all officers of the state and counties, and transact all necessary business with the officers of government.”

Instead, the Florida Legislature delegated authority to the Governor to both declare an emergency and implement emergency measures during the state of emergency through the enactment of Chapter 252, Florida Statutes.

Once declared, a state of emergency will continue until the Governor declares the emergency no longer exist and terminates the state of emergency by executive order or proclamation. However, a state of emergency cannot continue last no longer than 60 days unless renewed by the Governor. Should the Governor abuse the state of emergency powers, the Legislature may terminate a state of emergency at any time. See 252.36(2), Fla. Stat.

Local Authority to Declare State of Emergency?

An interesting question is whether counties and municipalities have the independent or supplemental authority to declare a local state of emergency in response to the Covid-19 coronavirus as was done by Orlando Mayor Buddy Dyer pursuant to Section 43A of the Orlando Municipal Code.

This is because, under Chapter 870, Florida Statutes, a county or local municipality official’s authority to declare a state of emergency appears to be limited to situations involving actual or potential violence by the citizenry, such as a riot, affray, mutiny, etc. Moreover, it would appear that a local declaration of a state of emergency can only be made if the Governor has not declared one. See 870.041, Fla. Stat.

Nevertheless, I will leave for another day whether Mayor Dyer’s State of Emergency Declaration is even constitutional or enforceable. But should a person be criminally prosecuted or civilly fined for violating Mayor Dyer’s declaration, it is highly questionable whether such a prosecution would be lawful or constitutional.

Emergency Management Powers

Once declared, the Governor is empowered with a number of emergency management powers that allow him to circumvent what would otherwise require legislative, administrative, or judicial action. See 252.36(5), Fla. Stat.

Examples of these emergency powers being exercised by Governor DeSantis during the coronavirus state of emergency include:

1. Waiving licensing requirements for out-of-state health care professionals.
2. Suspending regulatory statutes and administrative orders regulating the conduct of state business and agencies.
3. Controlling the movement and occupancy of persons within Florida.
4. Suspending or limiting the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.
5. Implementing measures controlling (a) the conduct of civilians, (b) pedestrian and vehicular traffic, and (c) public meetings and gatherings.

Enforcement of Emergency Measures

Once the Governor declares a state of emergency, all law enforcement agencies in Florida are required to enforce those measures as if they were any other duly enacted law. See 252.47, Fla. Stat. (“The law enforcement authorities of the state and the political subdivisions thereof shall enforce the orders and rules.”)

Moreover, the Governor is authorized to assume control of, and give direction to, any state or local law enforcement agency as is reasonable and necessary for the purpose of securing compliance with orders and rules made to enforce the state of emergency powers. See 252.36(6), Fla. Stat.

Penalties for Violation of Emergency Measures

A person who refuses to comply with any rule or order issued as part of a state of emergency commits a second degree misdemeanor, which is punishable by up to sixty days in jail, six months of probation, or a $500 fine. See 252.50, Fla. Stat.

In addition, the commission of certain crimes such as Burglary, Theft, and Contracting without a License are subject to enhanced penalties if committed during a state of emergency by taking advantage of the conditions created by the emergency (such as violating a curfew, burglarizing a house made accessible by damage from a natural disaster, etc.). See §§  810.02, Fla. Stat., 812.014(2)(a), Fla. Stat, and 489.127(2)(c), Fla. Stat.

Consequently, both a business operator and a beachgoer could be arrested and prosecuted for violating the social distancing requirements ordered by the Governor.

So keep your distance, because the only thing worse than getting too close to someone in public is getting too close to someone in jail!

Protect Ya Neck against the Coronavirus. We are making a few thousand prints and distributing them across New York City. Feel FREE to do the same in your City.
Share and RT this to the world. #wutang pic.twitter.com/coS5M3WdiW

— Wu Tang Clan (@WuTangClan) March 15, 2020