Henry v. Desantis

• Decision Date: 14 May 2020
• Docket Number: Case No. 20-cv-80729-SINGHAL
• Citation: 461 F.Supp.3d 1244
• Parties: Debra HENRY, Petitioner, v. Ronald DESANTIS, in his official capacity as Governor of the State of Florida, Respondent.
• Court: U.S. District Court — Southern District of Florida

461 F.Supp.3d 1244

Debra HENRY, Petitioner,

v.Ronald DESANTIS, in his official capacity as Governor of the State of Florida, Respondent.

Case No. 20-cv-80729-SINGHAL

United States District Court, S.D. Florida.

Signed May 14, 2020

Donna Mae Peterson, Peterson Law LLC, Miami, FL, Cory Carsan Strolla, Law Offices of Cory Strolla, P.A., West Palm Beach, FL, for Petitioner.

Edward Mark Wenger, Hopping Green & Sams, Colleen Maher Ernst, Tallahassee, FL, for Respondent.

ORDER DENYING EMERGENCY INJUNCTIVE RELIEF AND DISMISSING CASE WITH PREJUDICE

RAAG SINGHAL, UNITED STATES DISTRICT JUDGE

This action challenges the Governor of Florida's emergency-powers authority during a public-health crisis, to compel businesses to close and to restrict the free movement of Floridians. Filed in a manner requiring expedited review, before the Court is Petitioner's Complaint and Motion for Emergency Injunctive Relief (DE [1] ). The Court expedited a response from the Governor (DE [3] ) and he timely filed it as a motion to dismiss (DE [9] ). Reviewing the current pleadings and finding no further briefing necessary, this order follows.

BACKGROUND

At some point in December 2019, a highly contagious, novel coronavirus (SARS-CoV-2) was first detected in Wuhan, China, and, with human-to-human transmission, quickly spread across the globe. By early-March 2020, the World Health Organization declared a worldwide pandemic and by mid-May 2020, it was in 187 countries, infecting more than 4.31 million people, and accounting for almost 295,000 deaths.¹ In most cases, COVID-19 (the disease caused by the novel coronavirus) causes fever, dry cough, and shortness of breath. In severe cases, however, it requires hospitalization and can leave a patient needing a ventilator to combat life-threatening, extreme compromise of the lungs. The virus spreads primarily through respiratory droplets, which may linger in the air or on surfaces for hours.² And the world learns more about this novel disease every day.

At the early outset of this pandemic, the rapid speed at which COVID-19 appeared to be spreading caused leaders and public health officials grave concern. With no vaccine or a consensus on proven therapeutics, the world community uniformly appeared to agree that, if countries and communities failed to implement serious policies targeted at limiting person-to-person contact to reduce the rapid spread of COVID-19, national health care systems could be completely overwhelmed and reach a breaking point.

The United States' Response to COVID-19

Here in the United States, on March 16, 2020, President Trump and the White House's Coronavirus Task Force ("Task Force") issued guidelines—"15 Days to Slow the Spread"—for Americans to follow that were aimed at limiting the reach of COVID-19, again, ostensibly, in an effort to prevent overwhelming numbers of infirmed individuals being rushed to local hospitals with insufficient capacity, ventilators, and intensive care units ("ICU"). The guidelines included "mitigation practices," such as maintaining six feet of space between individuals, avoiding social gathering of more than ten people, practicing strict personal hygiene, and avoiding dining in restaurants and bars. Almost overnight, society was thrust into what has been coined a new normal. Terms like "social distancing" and "flatten the curve" became part of the everyday discourse; downtown cities became ghost towns; rush hour traffic on highways that typically rendered cars idle disappeared. While the federal government did not "order" Americans to stay home, it seemed like the overwhelming majority of Americans did so to avoid coming into any contact with other people.

COVID-19 did not affect all jurisdictions uniformly. So, for example, by May 13, 2020, while New York had over 335,000 cases, Florida had fewer than 42,000.³ And, under our federalist system, governors acted according to their states' situation. A handful exercised their emergency authority—and to various extents, ordering certain aspects of society literally to shut down within their borders. By executive order, several governors across the country deemed certain businesses "essential" (e.g., grocery stores, pharmacies, gas stations) and ordered all "nonessential" business to close under threat of civil penalty or criminal charges. See Goldstein v. Sec'y of Commonwealth , 484 Mass. 516, 142 N.E.3d 560, 567–68 (2020) (challenging the Governor of Massachusetts's response to COVID-19); Friends of Danny DeVito v. Wolf , ––– Pa. ––––, ––––, 227 A.3d 872, 879–80 (Pa. Apr. 13, 2020) (challenging the Governor of Pennsylvania's response to COVID-19); Wisconsin Legislature v. Secretary-Designee Andrea Palm , No. 2020AP765-OA, 391 Wis.2d 497, 942 N.W.2d 900 (Wis. May 13, 2020) (challenging Wisconsin's response to COVID-19). Thus, restaurants, hair salons, fitness centers, and others were compelled by government order to close. Some states went further; some ordered their citizens to remain home—a growing national trend of "safer at home orders." E.g. , Goldstein , 142 N.E.3d at 568.

On March 29, 2020, a few days before the 15 Days to Slow the Spread was set to expire, President Trump announced troubling statistics of the number of infections across the country, the upward trajectory of that trend, and models from research institutes predicting that COVID-19 could kill up to two million Americans if the mitigation practices were eased imprudently.⁴ And, on April 2, when the guidelines formally expired, the Task Force extended them through the month of April 2020 and issued "30 Days to Slow the Spread."

Florida's Response to COVID-19

In Florida, Governor DeSantis declared a state of emergency on March 9, 2020. See Fla. Exec. Order No. 20-52 (Mar. 9, 2020). He did not immediately join the "safer at home" trend, opting rather to encourage Floridians to follow the Task Force's guidelines in the 15 Days to Slow the Spread. The Governor did take steps by executive order designed to reduce social gatherings and minimize human-to-human transmission and the disease. See Fla. Exec. Order No. 20-68 (Mar. 17, 2020) (suspending the sale of alcoholic beverages for on-premises consumption); Fla. Exec. Order No. 20-70 (Mar. 20, 2020) (directing all restaurants, bars, and other food-service businesses in Broward and Palm Beach "to close on-premises service of customers"); Fla. Exec. Order No. 20-71 (Mar. 20, 2020) (extending the on-premises food consumption ban statewide, but authorizing "all vendors licensed to sell alcoholic beverages ... to sell alcoholic beverages in sealed containers").

However, in response to the Task Force's extending the guidelines on March 29 through the month of April, Governor DeSantis announced substantial changes to COVID-19 policies in Florida. On March 30, he issued a "safer at home" order for the four Southeast Florida counties of Monroe, Miami-Dade, Broward, and Palm Beach. See Fla. Exec. Order No. 20-89 (Mar. 30, 2020). At that moment, these four counties accounted for 60% of Florida's COVID-19 cases. Id. This "safer at home" order was now closer to what other states across the country were issuing—restricting the free movement of Floridians. Two days later, he announced that he would extend the policy statewide. See Fla. Exec. Order No. 20-91 (Apr. 1, 2020).

For the entire month of April 2020, 90% of Americans (and all Floridians) were subject to various state-implemented "safer at home" orders. But the mitigation strategies appeared to be working. The daily rate of increase in new cases declined precipitously throughout the month.⁵ By the end of April 2020, the Task Force was focusing on "re-opening" the country.

The Governor's Re-Open Florida Task Force

As the Task Force transitioned from mitigation strategies to "re-opening" the country, Governor DeSantis announced a parallel plan in Florida. On April 29, 2020, he announced his plan to "re-open" Florida in three phases. See Fla. Exec. Order No. 20-112 (Apr. 29, 2020). In the so-called "Phase 1," certain types of business that were previously deemed "nonessential" were allowed to open, provided they follow strict guidelines, all in an attempt to not "re-open" imprudently or too quickly. For example, restaurants may open, but they must operate "at no more than 25 percent of their building occupancy" and maintain "a minimum of 6 feet" separation between parties. Bars, pubs, nightclubs, and other establishments "that derive at least 50 percent of sales from alcohol," however, are to remain "closed"—that is, "closed" to the extent that they had been in the previous orders.

Consistent with the "safer at home" orders initially applying only to Southeast Florida, Phase I expressly exempted Miami-Dade, Broward, and Palm Beach Counties from this first wave of re-openings. See Fla. Exec. Order 20-112, at § 2(A)(2) (Apr. 29, 2020). Counties outside of Southeast Florida entered Phase I on Monday, May 4, 2020. As of May 11, Palm Beach County was included in Phase I. See Fla. Exec. Order No. 20-120 (May 9, 2020). As of the date of this order, there appears not to be any official plan from the Governor on Broward and Miami-Dade Counties.

Petitioner Debra Henry

Petitioner is a resident of Palm Beach County and has worked in the food-service industry for forty years. For the past three years, she had worked at Pit Row (a bar) and Buffalo Wild Wings (a restaurant) in Palm Beach County. Sadly, on March 17, 2020, she was let go.⁶ She maintains that the effect of the Executive Orders closed her places of employment and caused her to lose her jobs. Further, she argues, because Governor DeSantis acted beyond his authority and violated her constitutional rights, the Executive Orders are unconstitutional, mandating this Court enter an emergency injunction and vacate the Executive Orders.

DISCUSSION

I. APPLICABLE LAW

A. Legal Standard for Dismissal for Failure to State a Claim

A complaint must contain "a short and plain statement of the claim showing that the pleader is...