It’s time to end the state of emergency

OPINION

BY LEN CABRERA

Florida’s State of Emergency Management Act (Florida Statutes 252.31-252.60) defines an “emergency” as something that “results or may result in substantial injury or harm to the population or substantial damage to or loss of property.” The stated “legislative intent” of emergency powers is to prevent things “which threaten the life, health, and safety of [Florida’s] people; damage and destroy property; disrupt services and everyday business and recreational activities; and impede economic growth and development.”

By now, anyone paying attention to COVID-19 knows that the virus does not rise to the level of a health emergency because the infection fatality rate is on par with an average seasonal flu (see below). The political overreaction and refusal to cede emergency powers will cause more damage than COVID-19. The devastation caused by Governor DeSantis, county commissioners, mayors, and an apathetic legislature will be felt for years to come.

During the Gainesville City Commission meeting on May 21, Commissioner Gail Johnson wanted to remove the reference to Florida Statute 252.50 in the County’s Emergency Order so that enforcement would be in the form of civil citations rather than criminal prosecution for people who violate the mask order.

Statute 252.50 is one paragraph: “Any person violating any provision of ss. 252.31-252.90 or any rule or order made pursuant to ss. 252.31-252.90 is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”

A second degree misdemeanor can be punished up to 60 days in jail or a fine up to $500. Commissioner Johnson was concerned about citizens who violate the county order, but that’s only part of the statute (“any rule or order made pursuant to ss 252.31-252.90”). The first part of Chapter 252.50 applies to elected officials and bureaucrats as participants in the state’s emergency management system, to ensure they comply with the law. So what does the law say?

Chapter 252 (Emergency Management) falls under Title XVII, Military Affairs and Related Matters. It mostly outlines rules that state agencies must follow and is primarily focused on agency coordination, emergency planning, etc. There is only one provision aimed at county and city governments: 252.38 (Emergency Management Powers of Political Subdivisions). Paragraph (3) outlines specific powers, which include the ability to hire or fire emergency personnel, make contracts, distribute equipment, and create operating centers for continuity of government. There is nothing about closing businesses, limiting occupancy, or requiring masks, except maybe this vague statement: “taking whatever prudent action is necessary to ensure the health, safety, and welfare of the community.”

The current state of emergency dates back to March 1, when Governor DeSantis issued Executive Order 2020-51 (Establishes Coronavirus Response Protocol and Directs Public Health Emergency): “I direct the State Health Officer and Surgeon General, Dr. Scott Rivkees, to declare a public health emergency in the State of Florida, pursuant to his authority in section 381.00315, Florida Statutes.” A week later, DeSantis issued Executive Order 2020-52 (Emergency Management – COVID-19 Public Health Emergency).

Everything hinges on Florida Statute 381.00315. Previous columns have addressed the ongoing violation of the isolation rules, which are limited to people “reasonably believed to be infected” and only authorized for “communicable diseases that have significant morbidity.” A very important line in is (1)(c): “The declaration of a public health emergency shall continue until the State Health Officer finds that the threat or danger has been dealt with to the extent that the emergency conditions no longer exist.”

On May 26, Paul Myers told the Alachua County Commission that the Florida Department of Health (FDOH) had received 100,000 COVID-19 antibody test results from labs across the state, 719 from Alachua County. FDOH used this information to calculate an infection rate of about 5%, both state-wide and in Alachua County. That translates into an infection fatality rate of 0.2% state-wide and 0.05% in Alachua County. Also on May 26, Governor DeSantis said the infection fatality rate in Florida’s hardest hit county, Miami-Dade, was 0.14%. During the same press conference, he mentioned a CDC report that estimated the nationwide rate at 0.26%, and he suggested the reason for the discrepancy was that some states had sent COVID-positive patients back to nursing homes, while DeSantis prohibited this practice on March 15.

The governor’s speculation is correct, as nearly 40% of all COVID-19 deaths in the U.S. have been in nursing homes. Six states (New York, New Jersey, Massachusetts, Michigan, Pennsylvania, and Connecticut) ordered nursing homes to re-admit COVID-19 infected residents. These states have less than 19% of the country’s population and almost 61% of the COVID-19 deaths.

The governor was wrong about seasonal flu, however. He claimed the flu’s infection fatality rate is 0.10%. CDC data show the annual infection fatality rate for seasonal flu has ranged from 0.10% to 0.18% since 2010. The average is 0.14%, exactly the same as Miami-Dade’s COVID-19 fatality rate and almost three times higher than Alachua County’s COVID-19 fatality rate.

We do not declare public health emergencies every flu season. COVID-19 has an overall infection fatality rate on par with flu, as reported by FDOH. It’s time for Dr. Scott Rivkees to end the state of emergency. Governor DeSantis can also end it, based on 252.36, and so can the legislature. The same statute says, “The Legislature by concurrent resolution may terminate a state of emergency at any time.”

While they’re at it, our legislators need to review the State of Emergency Management Act to reduce chances for abuse in the future and explicitly put limits on executive power. One obvious fix is to not allow an indefinite state of emergency. Currently, the governor can renew the emergency declaration every 60 days. After the first 60 days, the governor should need to get approval from 60% of both houses to make sure there is sufficient justification for a continued state of emergency.

It’s time for Florida and Alachua County to reassess COVID-19 and admit the emergency is over. Japan ended its emergency order on May 25. Davidson County, NC, ended its emergency order on May 27. Davidson County has 100,000 fewer people than Alachua County with roughly the same number of cases and 11 deaths (versus 7 in Alachua County). Montana reopened its schools on May 11. China, Taiwan, Germany, Sweden, Denmark, and Norway have also reopened schools. Last week, two California Assemblymen introduced a resolution to end their governor’s emergency powers.

Governor DeSantis keeps saying that government should not differentiate between “essential” and “non-essential” businesses, but his own executive orders defined them. 2020-68 closed bars (over 50% revenue from alcoholic beverages) and limited restaurants to 50% capacity. 2020-71 restricted all restaurants to take-out or delivery only and closed all gyms (except hotel gyms). 2020-91 made an extensive list of “essential” businesses. It’s hard to see where he has the authority to do this, given the powers listed in Paragraph (5) of statute 252.38.

In The Spirit of Laws, Montesquieu wrote, “any man who has power is led to abuse it.” That’s not limited to governors. The Alachua County Commission arbitrarily decided to go beyond the state orders and restrict businesses to 1 person per 1,000 square feet (later changed to 1 per 500 square feet and then to 50% occupancy) and require face masks. (They confused both businesses and residents on mask enforcement, then removed the mask requirement, then added it back again.) Anyone watching commission meetings for Alachua County or the City of Gainesville witnesses the definition of unprepared, capricious governance.

There has been a huge cost to these actions in Florida: 2.1 million unemployment claims since March 15; the unemployment rate jumped to 12.9% in April, up from 4.4% in March and 2.8% in February; in the twelve months ending April 2020, the state lost over 1 million jobs. The May figures will only get worse. The long-term consequences of canceling elective surgeries and cancer screenings, sending at-risk kids home, bankrupting countless businesses, and ruining food supply chains will take months or years to quantify, but they won’t have a fancy dashboard and daily press conferences. Even Dr. Anthony Fauci warned that there could be “irreparable damage” if we take too long to reopen (11:07 into this video). No politicians will be held accountable unless the citizens force the issue.

In his May 26 press conference, Governor DeSantis emphasized the “importance of having a society based on the rule of law rather than based on the whim of an individual dictator.” Under our current emergency order, we’re subjected to the whims of several dictators. Newly-appointed Florida Supreme Court Justice Renatha Francis said the point of the judiciary is to check “arbitrariness and potential abuses of power.” With the governor, the Florida Surgeon General, and the legislature refusing to end the state’s emergency order, she’s going to have her hands full.