Q&A – Any Legal Recourse For South Florida Businesses During Lockdowns?

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 levels. Early in the pandemic, I addressed the topic of Florida’s laws regarding the use of executive authority during times of declared emergencies. 

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.

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Email: brianmudd@iheartmedia.com

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