Q&A – Can South Florida Governments Ignore Governor DeSantis’s Orders?

Today’s entry: How can local governments say they’re not going to honor Governor DeSantis’s reopening order? Doesn’t the Governor’s order supersede a local government’s order?

Bottom Line: We’re in all new territory during the pandemic which has tested and continues to challenge state law in ways that hadn’t been relevant previously. Friday’s reopening order by Governor DeSantis, in which all Florida businesses are to reopen without imposed local restrictions, is the latest and potentially the biggest standoff to date. While South Florida’s shuttered businesses like bars and nightlife entertainment venues have been quick seized on the opportunity to open for the first time in six months, Broward, Miami-Dade, and Palm Beach County officials haven’t been uniformly supportive. In fact, there have been inferences that local governments may still impose fines for mask and social distancing orders, curfews, and limited indoor capacity for certain businesses like restaurants. Maybe it’ll prove to be posturing at the local level, rather than enforced policy. If that’s the case, this conversation will be moot. If, however, enforcement action is taken, and the legal authority of local government is tested, here's what Florida law states:

252.36 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, or, in the Governor’s absence, her or his successor as provided by law, 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. The Governor is authorized to delegate such powers as she or he may deem prudent.

That last line is important in understanding why Broward, Miami-Dade, and Palm Beach counties have operated independently of Florida’s other 64 counties during the course of the pandemic. Rather than issuing sweeping one-size-fits-all orders, like a statewide mask mandate, for example, he delegated those types of decisions to local governments. That included a special carveout for the TriCounty generally. In Friday’s order, the governor effectively pulled back on those delegations as outlined in the Emergency management powers of the Governor.

In general, local governments aren’t allowed to set policy which directly contradicts the state or federal government, though they are allowed to set more restrictive ordinances. A notable exception to this in Florida is the state’s “Preemption Law”, which bans local governments from setting gun control policy at the local level. We also had a bad on sunscreen bans pass in this year’s session, so there are exceptions.

The bottom line is this. Under state law pertaining to emergency declarations, it appears Governor DeSantis is operating according to his prerogative. The flip side of this conversation is that the state’s law, and thus the governor’s use of preemption in this instance under it, are untested in the courts. Hopefully, there won't be a need for litigation but if there is, that will determine who’s right.

That being said, I feel we need to error on side of liberty and personal responsibility rather than arbitrary restrictions by local officials.

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Email: brianmudd@iheartmedia.com

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