Florida Governor’s Office Clarifies Local Governments Retain COVID-19 Emergency Authority to Be More Strict than the Governor’s Executive Orders

On April 1, 2020, Governor Ron DeSantis issued Executive Order No. 20-91, directing a statewide stay-at-home order that limited individuals’ movement but not local governments’ ability to restrict essential businesses and activities. The Order created confusion among many local governments who were left wondering whether their local, existing emergency orders were still valid and whether they could implement stricter measures than those contained in the Governor’s Order.

On April 2, 2020, the Governor issued Executive Order No. 20-92, amending Executive Order No. 20-91, in order to provide clarity as to the effect of Section 4 of Order 20-91. In addition to referring to Order 20-91 as an order “directing a statewide essential services and activities order,” Order 20-92 provided that Order 20-91 superseded “any conflicting official action or order issued by local officials in response to COVID-19.”

Despite the amendment, local governments continued to grapple with the uncertainty created by Order 20-91. The question is whether an Order is “conflicting.” In response to a question posed by the Mayor of the City of Weston, a municipality in Broward County represented by our Firm, on April 3, 2020, the Governor’s General Counsel further clarified local governments’ authority pursuant to Order 20-91, as amended by Order 20-92.

The General Counsel advised that Order 20-91 “only restricts individuals by limiting their movement, except when those individuals are participating in an essential service or activity. The Order enforces this by law enforcement with a second degree misdemeanor on the individual. Further, Section 4 of the Order only preempts to the extent a local authority seeks to add to the essential list in the Governor’s Order.” (emphasis added). Order 20-91 creates a process for state approval of local proposals for additional essential services or activities to be recognized.

The General Counsel further explained:

“The Governor’s Order does not do either of the following, and local authorities are not preempted in any way:

1. The Governor’s Order does not affect whether a local authority may close a business (or in other words, decide if a business in [sic] non-essential).  That local enforcement would presumably be directly on the business itself.
2. The Governor’s Order does not dictate whether additional social distancing or group gathering requirements can be placed on essential services or essential activities.  Local authorities can do so both on individuals and on businesses/organizations.”

The General Counsel concluded that local governments can exercise their authority to “close or restrict how any business/organization must comply with [local government] codes. The Governor’s Order does not give a business/organization any “right” to avoid your codes.” Weston City Attorney Jamie Cole also spoke with the General Counsel to confirm this interpretation. To view the General Counsel’s email response, click here.

Our Firm’s Government Division counsel are working with local governments to ensure compliance with the Governor’s Orders and determine what additional local emergency measures may be taken to further protect their community’s health, safety, and welfare. To discuss your local government’s compliance with the Governor’s Orders and the issuance of additional local emergency measures or orders, please contact a member of our Government Division.