Florida Governor Ron DeSantis signed Executive Order 20-91 on April 1 outlining a stay-at-home policy for Floridians. The Order took effect Friday, April 3 at 12:01 a.m. and will last until Thursday, April 30th, unless it is extended for a longer duration.
Governor DeSantis signed his first COVID-19 order on March 1st and since has drafted and signed approximately 40 executive orders to combat the spread of COVID-19.
On March 20th, Governor DeSantis placed a prohibition on almost all elective medical procedures, unless delaying the procedure “[would] place a patient’s immediate health, safety, or well-being at risk, or will, if delayed, not contribute to the worsening of a serious or life-threatening medical condition.” This order applies to all hospitals, ambulatory surgical centers, private practices, and almost all other health care offices in Florida and prohibits dental, cosmetic, and most cataract procedures.
Many have criticized the Governor for his slow response to the crisis, especially when compared to the heads of other heavily populated states like New York and California (who signed stay at home orders March 22nd and March 19th respectively). Even local governments in Florida, such as the City of Miami and Hillsborough county, have had similar orders issued for weeks. Governor DeSantis, in addressing these concerns, has expressed his desire to work with the President and to model Florida’s response after the response by the Federal Government.
While many Floridians are satisfied with what the Governor has done, others are understandably upset, given the significant danger that all Floridians are facing from the virus. A number of news broadcasts showed a very busy and crowded Spring Break scene, so obviously the commercial interests of Florida’s tourist industry were put in front of health concerns from the virus, and many will die as a result of this.
Executive Order 20-91 (Essential Services and Activities During COVID-19 Emergency) is the most restrictive order to date as it places a limit on the travel of all Florida citizens. The order has also caused a large amount of confusion for individuals, which largely stems from Sections 1(A) and 1(B).
Section 1(A) of the order appears to prevent senior citizens and individuals with significant underlying medical conditions from leaving their homes. This section reads:
Senior citizens and individuals with a significant underlying medical condition (such as chronic lung disease, moderate-to-severe asthma, serious heart conditions, immunocompromised status, cancer, diabetes, severe obesity, renal failure and liver disease) shall stay at home and take all measures to limit the risk of exposure to COVID-19. (emphasis added)
As discussed below, the above restriction on senior citizens and individuals with the specified medical conditions does not appear to have an exception for essential activities in the language below, but the Governor’s staff apparently believe that it does.
Section 1(B) of the order expands on Florida’s stay-at-home initiative by limiting the movement of all persons in Florida. This section reads:
In concert with the efforts of President Trump and the White House Coronavirus Task Force to fight COVID-19, and based on guidance provided by Florida Surgeon General and State Health Officer, Dr. Scott Rivkees, all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.
Section 1(B) effectively restricts the movement of nearly all Florida citizens for reasons not deemed to be “[providing] essential services or [conducting] essential activities.” Essential activities is, however, very broadly defined and includes attending religious services without any need for social distancing or following CDC Guidelines, and participating in assorted recreational activities, including swimming, so long as still adhering to social distancing guidelines. One performer has indicated that, “I believe in G.O.D., but will follow the guidelines of the C.D.C.” Putting children
Children and elderly Floridians who are have been taken to religious services by those who may not understand the risks involved for themselves and those whom they interact with, has upset many Floridians. The order comes only days after a story went viral about a Tampa Bay megachurch pastor holding a service despite a county-wide stay-at-home order. Under the new order signed by the Governor, counties will not be allowed to prohibit their citizens from congregating in the name of religion. This fact is even further solidified following the second order that DeSantis signed. This second order made clear the fact that the Governor’s orders “shall supersede any conflicting official action or order issued by local officials in response to COVID-19.”
Sections 1(A) and 1(B) of the order have caused much confusion. This confusion generally centers around two primary factors:
- There is some ambiguity in the definition of “senior citizen.” During a press conference, DeSantis referenced senior citizens being individuals “65 and older.” While this number is consistent with other measures for elderly populations, it is contrary to existing Florida law which defines “senior citizen” as “a person who is 60 years of age or older.”
- The lack of clarity of whether 1(A) is to be read in conjunction or separately from 1(B) caused confusion among Floridians. When Section 1(A) and 1(B) of the order are read together, it appears as though individuals over the age of 65 are to stay out of hospitals and the offices of health care providers. This would mean that many health care professionals who would otherwise be able to help treat patients are to stay home instead.
On the evening of Friday, April 3rd some clarity was brought to the issues listed above when the Governor released a document titled FAQs for Executive Order 20-91. The document provides answers to some important questions that Floridians are asking with regard to this new order.
One of the Q&As in this document shows that when the Governor signed the order, he was apparently under the impression that senior citizens and individuals with significant underlying medical would be permitted to leave their homes “when necessary to obtain or provide essential services or conduct essential activities.” This Q&A can be seen below:
- [Q] May senior citizens and individuals with significant medical conditions leave their homes to go to the grocery store or pharmacy, or go for a walk, or go to work at an essential service?
- [A] Yes – they may leave their homes when necessary to obtain or provide essential services or conduct essential activities.
There will, of course, be many questions as to what the term “essential services” encompasses, but the apparent intent is to make the definition as broad as possible. Besides specifically exempting religious ceremonies, and also leisure activities where there is appropriate social distancing, the order allows all of the items included in the definition used in the U.S. Dept. of Homeland Security memo that went out on March 28th and all of the items included in the Miami-Dade County’s Emergency Order 07-20 issued on March 19, 2020. The Department of Homeland Security memo mentions that the list provided is “advisory in nature[,]” and “not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions.” Similarly, the Miami-Dade Emergency order utilizes language that may lead to several different interpretations of what could be deemed an “essential service.”
In addition to the above, language in the Order can be read to indicate that City and County rules that do not have the same definition and exclusion are required to allow their citizens to use the exemptions permitted under the order. It is not clear how many Floridians will die because of this.
The Q&As also provide the opportunity to find further exceptions as to what is an “essential service” or an “essential activity” by providing a hyperlink to the following website. This website is operated by the Florida Division of Emergency Management and it contains the Essential Services and Essential Activities List for the executive order.
When asked about the enforcement of the order, the Governor did not comment on the exact methods of enforcement.
The Q&As provide clarity to the above issue and state that the order will be enforced by law enforcement, and a violation of the order is a second-degree misdemeanor. Additionally, the Q&As state that local authorities are allowed to adopt requirements for businesses, operations and venues, including buildings, beaches and parks, that are stricter than those in the Governor’s order.
Based on the language of the order, it is unclear whether attorneys fit under the list of individuals who provide “essential services.” An Executive Committee of the Florida Bar met and determined that, in most circumstances, attorneys are individuals who provide essential services. While this does provide guidance for attorneys, the President of the Florida Bar still stresses that “you should carefully review [the stay-at-home order], and all other relevant orders, and use your best judgment to determine whether your work meets the mandates of the order.”
We believe that lawyers who are involved with the justice system, drafting and implementing health care directives, doing legal work for health care providers or facilities or assisting businesses and individuals in financial matters are considered to be engaged in essential activities.
In addition to guidance on the stay-at-home order, in the last few days, Governor DeSantis has made efforts to combat other issues through the use of executive orders. On April 2nd, just a day after signing the stay-at-home order, DeSantis signed another Executive Order targeted at combating the vast unemployment across the state. Explaining the reasoning behind this decision, DeSantis revealed that “in 2019, Florida had a total of 307,701 claims for reemployment assistance. In the past two weeks, we have received 348,511 claims.” With every state and nation facing similarly dismal numbers, it is clear that decisiveness is a key characteristic all leaders will need in the coming weeks.
Though it might have been a rocky start, it seems that Florida and Governor DeSantis are making strides to catch up with states further ahead in the quarantining process. It is also important to note that Florida is in an incredibly unique situation. Unlike most states, Florida draws a large percentage of revenue from tourism and heightened tourist taxes implemented at a county level. Tourism is the 4th largest employer in the state and accounts for over $80 billion in revenue for the state per year. Given this critical factor, the Governor’s reluctance to shut down travel is understandable, but as Illinois Governor J.B. Pritzker said in explaining the difficulty of his implementation of a stay-at-home order, “I fully recognize that, in some cases, I am choosing between people’s lives and saving people’s livelihood. But ultimately, you can’t have a livelihood if you don’t have your life.”
I represent many physicians and health care providers who have the virus or have been exposed to it and wait with significant apprehension, and sorely wish that Florida would take a more protective stance.
We will be giving a webinar regarding these clarifications and their impact on Monday, April 6, 2020 at 9:00 AM EDT which you can register for here.
The Q&A’s released by the Governor can be viewed by clicking Here
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