Local Government Emergency Powers and Enforcement Measures
Examine the authority of local governments to adopt and enforce emergency measures, including mask requirements, business regulations, and virtual meetings. Learn about Home Rule powers, enforcement strategies, and the policy framework under Chapter 252. Understand the key principles and procedures governing emergency powers in response to disasters and emergencies.
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Local Power to Adopt and Enforce Emergency Measures Robert K. Lincoln Law Office of Robert K. Lincoln, P.A. FMAA Webinar July 25, 2020
Agenda Examine local government authority under Home Rule and Chapter 252, Part I, to adopt and enforce responses to a health or other emergency. Three questions relevant to current situation: o Can local governments adopt and enforce requirements to wear a face mask in some or all locations? o Can local governments adopt and enforce emergency regulations on business operations (mask/distancing requirements, other operational limitations). o Can local governments adopt emergency provisions allowing virtual meetings absent gubernatorial approval? 6/25/2020 2
General Principles Home Rule Powers Scope any area not preempted or in conflict with state law or Gubernatorial EO. Enforcement o Counties misdemeanor per 125.69(4) or civil citation per 125.69(1) o Cities - criminal violation per 166.22 or civil citation per 166.0415 o Both Code enforcement per Chapter 162, Part I. Civil citation per Chapter 162, Part II Enforcement as injunction against nuisance 823.05/60.5. County Court citations or criminal prosecution $10 payment to Clerk under s. 34.045 and payment to state atty for prosecution under 27.34. To be enforceable by criminal sanctions or citation, a regulation must be adopted by ordinance not by resolution. White v. Town of Inglis, 988 So. 2d 163 (Fla. 1st DCA 2008). Administrative penalties must be authorized by statute per Art. I, Sec. 18. Only statute generally authorizing administrative penalties is Chapter 162, Part I. 6/25/2020 3
Emergency Powers under Chapter 252 Part I 252.32 Policy and purpose. (1) Because of the existing and continuing possibility of the occurrence of emergencies and disasters resulting from natural, causes; in order . to provide for the common defense and to protect the public peace, health, and safety; and to preserve the lives and property of the people of the state, it is hereby found and declared to be necessary: (b) To confer upon the Governor, the Division of Emergency Management, and the governing body of each political subdivision of the state the emergency powers provided herein. Definitions (252.34) (2) Disaster means any natural, technological, or civil emergency that causes damage of sufficient severity and magnitude to result in a declaration of a state of emergency by a county, the Governor, or the President of the United States. Disasters shall be identified by the severity of resulting damage, as follows: (4) Emergency means any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property. (9) Political subdivision means any county or municipality created pursuant to law. NOTE only Governor or County can declare disaster, but no such limit applies to emergencies. 6/25/2020 4
Triggering Emergency Powers Gubernatorial declaration of Emergency pursuant to Sec. 252.36 o (1) (b) Pursuant to the authority vested in her or him under paragraph (a), 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. o (2) 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 thereof is imminent. Local declaration of emergency per 252.38(5) Seven day increments. Emergency powers under Chapter 252 will expire with the EO issued by the Governor or local government. 6/25/2020 5
City/County Emergency Powers 252.38 Emergency powers of political subdivisions. Safeguarding the life and property of its citizens is an innate responsibility of the governing body of each political subdivision of the state. (3) EMERGENCY MANAGEMENT POWERS; POLITICAL SUBDIVISIONS. (a) In carrying out the provisions of ss. 252.31-252.90, each political subdivision shall have the power and authority: 1. To ; provide for the health and safety of persons and property 5. To request state assistance or invoke emergency-related mutual-aid assistance by declaring a state of local emergency in the event of an emergency affecting only one political subdivision. The duration of each state of emergency declared locally is limited to 7 days; it may be extended, as necessary, in 7-day increments. Further, the political subdivision has the power and authority to waive the procedures and formalities otherwise required of the political subdivision by law pertaining to: . a. Performance of public work and taking whatever prudent action is necessary to ensure the health, safety, and welfare of the community. [note this provision appears to refer to executive actions rather than adopting regulations.] 6/25/2020 6
Utilizing Emergency Powers 252.46 NOTE these powers are intended for the governing body of each political subdivision 252.46 Orders and rules. (1) In accordance with the provisions of chapter 120, the political subdivisions of the state . are authorized and empowered to make, amend, and rescind such orders and rules as are necessary for emergency management purposes and to supplement the carrying out of the provisions of ss. 252.31- 252.90, but which are not inconsistent with any orders or rules adopted by the division or by any state agency exercising a power delegated to it by the Governor or the division. (2) All orders and rules adopted by any political subdivision shall have full force and effect of law if promulgated by a political subdivision of the state or agency thereof, when filed in the office of the clerk or recorder of the political subdivision or agency promulgating the same. All existing laws, ordinances, and rules inconsistent with the provisions of ss. 252.31-252.90, or any order or rule issued under the authority of ss. 252.31-252.90, shall be suspended during the period of time and to the extent that such conflict exists. This statute places local government rules and orders that implement Emergency Powers under Chapter 120. See Sec 120.52(1)(a)(c) Agency includes government entities expressly made subject to this chapter. However, based on the language in subsection 2, such rules and orders are final upon filing without being subject to proceedings before DOAH under 120.54 /56 or 120.569/57 and therefore constitute final agency action subject to immediate judicial review under 120.68.(1)(a) and generally 120.68(6),(7) and (9). NOTE Consider using procedures consistent with 120.54(4) and relevant Uniform Rules. 6/25/2020 7
Emergency Rules - Issues and Enforcement Delegation: o An ordinance or an emergency rule could delegate authority to issue emergency orders to a Mayor, City Manager or County Attorney, but probably not the authority to issue more quasi-legislative rules. o Local ordinance and adopted emergency management plan might grant additional powers to the local emergency management agencies and their director to issue rules. o Otherwise, emergency rules should be adopted by the governing body. Enforcement - per Sec. 252.50, any violation of the statute or any order/rule issued pursuant to authority under the statute is a 2d degree misdemeanor. o Enforcement by arrest per 901.15 if officer sees a violation. o Enforcement by notice to appear per 901.28 if officer sees a violation. o Civil citation per prearrest diversion program in 901.41 if this offense included in the implementation per 901.41(3). o Case probably classified as municipal/county ordinance prosecution subject to filing fee under sec. 34.045 and payment to state attorney for prosecution under 27.34. A local government could adopt an ordinance providing that a violation of Sec 252.31-90, any rules or orders issued pursuant to Sec 252.36, 253.38 , an approved emergency management plan, or rules or orders issued pursuant to Sec 252.46 are declared unlawful and subject to enforcement by code enforcement, civil citation, criminal prosecution per 166.22, or any other legal means. 6/25/2020 8
Mask Requirements Home Rule Would require an ordinance or emergency ordinance governing either this emergency or medical emergencies in general. o Don t rely on a general emergency power/operations ordinance to support an administrative order imposing mask requirements. Constitutionality: well drafted regulation with thoughtful limitations or exclusions (see Tampa s) should not violate substantive due process or 1st amendment rights Preemption - Not directly in conflict with Governor s EO Note on issues with anti-mask/ Klan statutes - Sec 876.155 limits their application Enforcement o criminal prosecution o civil citation to County Court o code enforcement Note to the extent the businesses are subject to the regulation, injunctions/prosecutions under nuisance statutes (823.05 ; 60.5; 60.6) might be available. 6/25/2020 9
Mask Requirement - Emergency Rule Enactment by local governing body as Rule under authority of Sec 252.46 for the authorized purpose of protecting lives during emergency as specifically authorized and directed by Sec 252. 32(1), 252.38 and 252.38(3)(a)(1). Predicate - local jurisdiction under a Gubernatorial EO or a 7-day local declaration. Recitations facts demonstrating scope/nature of emergency and that jurisdiction is in a state of emergency, etc. ; statement that order is entered pursuant to 252.46; provisions for termination; that order is final and enforceable when filed with clerk; methods of publication. Specific provisions: o Standards, requirements, applicability o Enforcement per 252.50; also provide any other directions regarding enforcement (e.g. civil citation if that program exists, directions as to warnings, etc.). Enforcement arrest/notice to appear and proceedings before County Court. Civil citation possible if added to diversion program. Probably treated as a city/county ordinance violation for filing fee/prosecution costs. 6/25/2020 10
Social Distancing/ Occupancy/ Mask Regulations on Local Businesses/ Professions Home Rule- Issue May Be Preemption Regulating the occupancy or operations of businesses (e.g. restaurants at or occupancy) - preemption from building, health and business statutes. Regulating operations of certain professions preemption by licensing statutes. Need to evaluate State Surgeon General orders as well as Governor s. BUT otherwise authorized under Home Rule; Greater flexibility in enforcement than under and Emergency Rule Emergency Rule Not Preempted If Not in Conflict with Governor s EOs. But statute provides for only criminal penalties But a local ordinance providing separate enforcement provisions for violations of emergency rules and orders could restore flexibility. 6/25/2020 11
Virtual Meetings Issue: multiple AGO s interpreting quorum and voting requirements of Sec 126.66, 166.041, and 286.012 to require the physical presence of a majority of the members. See AGO-2020-03. HOWEVER, those statutes do not directly state that a majority must be present. Governor EO effective to waive/limit under 252.36, because EO s have the force of law and govern against statutes or regulations in opposition. Home Rule ordinance ineffective based on AGO history and conflict preemption. An Emergency Rule adopted under 252.46 Separate authority to modify the quorum and presence requirements Should include the alternate provisions that will be taken to ensure compliance with adequate notice and other applicable public meeting requirements, particularly, Art I, Sec. 24 (all meetings shall be open to the public). Use procedures consistent with Sec. 120.54(4) and Rule 28-102.003, FAC (emergency meetings) for the virtual meetings 6/25/2020 12
Some Recommendations Adopt a local ordinance making violations of Sec. 252.31-90, otherwise prosecutable under Sec 252.50, are violations of the local code and may be enforced by criminal prosecution, civil citation, code enforcement or any other means authorized by law. Adopt or amend local emergency/emergency management ordinances to (a) reference section 252.46 as a source of authority to adopt emergency rules and orders; (b) distinguish between emergency rules and emergency orders and who may issue them; and (c) provide procedures for adopting emergency rules and orders that implement 252.46, including notice and publication requirements. 6/25/2020 13
Questions 6/25/2020 14
