What Happens if my City Passes an Emergency Ordinance in Response to COVID -19 that is More Restrictive than My State’s Emergency Order? Which Law do I Follow?

On March 9, 2020, Florida Governor Ron DeSantis issued Emergency Order 20-52 to declare a state of emergency in the State of Florida in response to the novel Coronavirus (“COVID-19”).  As part of that declaration, Governor DeSantis ordered that nightclubs and bars close for a period of thirty days and restaurants implement social distancing measures and operate at 50% capacity. Three days after the announcement of the new safety measures, on March 12, 2020, Miami-Dade County Mayor, Carlos A. Gimenez, declared a state of emergency for Miami-Dade County which provided that further orders may be issued to protect the health safety, and welfare of the community. In line with that provision, on March 17, 2020, Mayor Gimenez issued an additional order that restaurants, bars, taverns, nightclubs, banquet halls, cabarets, breweries, cafeterias, and any other such alcohol and food service establishment with a seating capacity of greater than eight people be also be closed, also for a period of thirty days.  To the surprise of many, the Miami-Dade order was much more restrictive than the order issued at the state level.  Restaurant owners in Miami-Dade County, particularly owners of small, family owned restaurants are understandably concerned with what a complete shut-down will mean for their revenue and, consequently, the future of their businesses. Desperate to find a loophole, some Miami-Dade restaurant owners have wondered whether they can follow the broader state order and remain in compliance with the law. However, they are mistaken.

Levels of Government and Rulemaking Authority

Our government is generally divided into three levels. At the highest level is the federal government, who’s chief executive is the President of the United States. Underneath the federal government, at the middle level, are the various states that collectively make up the United States of America.  The governors of each state are the chief executives for their respective states. Finally, the lower level is comprised of the various local governments which include the various cities, counties, townships, and municipalities located within each state.  Each of these cities, counties, townships, and municipalities is run by a mayor.  Local governments are created under a charter of the state in which they are located and are granted powers to manage local government by their state’s constitution.  All three levels of government have rulemaking authority, and as a result, there sometimes can be conflict in the laws or orders issued at different levels and which affect the same citizens.  Which law or order should those citizens follow?

Conflict of Laws and Preemption

When conflict between laws or orders issued from different levels of government exists, the law at the higher level will typically govern unless that law or declaration is found to be unconstitutional.  For instance, when federal and state law is in conflict, the federal law will supersede, or preempt, the state law and take precedence due to the supremacy clause of the United States Constitution.  The same is true as between state and local law.  Similar to federal and state laws, state laws will usually prevail when state and local laws are in conflict unless local law is preempted by state law. There are three conflicts that will trigger a preemption of local law by the state.

  1. Direct conflict – An ordinance directly opposes state law.
  2. Express preemption – A state law directly opposes a local ordinance.
  3. Implied preemption – Implied preemption can occur in three different ways:
        1. When a local ordinance prohibits an act permitted by the state.
        1. When a local ordinance permits an act prohibited by the state.
        2. When there is clear legislative intent that the “field” is preempted by state law. Field preemption occurs when the federal or state government legislates in a way that is so comprehensive as to occupy an entire field or subject matter.

However, not every instance in which laws are issued from varying levels of government on the same issue should be viewed as evidence of conflict.   Where, as in the case of the State of Florida and the Miami Dade County orders on COVID-19, the laws are not in conflict and the local law is not preempted, the two can coexist and the narrower more restrictive local order must be followed.  The Florida Supreme Court dealt with this very issue in City of Miami Beach v. Rocio Corporation, 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981).  In that case, the court stated the following:

“The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation enacted by municipalities may not conflict with state law. If conflict arises, state law prevails. An ordinance which supplements a statute’s restriction of rights may coexist with that statute, whereas an ordinance which countermands rights provided by statute must fail.”

Because the local government derives its power from the state government, it has broad discretion to legislate in furtherance of the health, safety, and welfare of the members of its community.  When added to the fact that both the state and local governments are currently acting under declared states of emergency, there is no question that both orders will surely be upheld as valid. Thus, they must both be followed.

That being said, there is relief being implemented by the government at both the  federal and state levels in order to alleviate the negative effects and uncertainty that business owners, particularly small business owners, across the nation are facing. Here is some of the relief that is available as of the date of this email:

  • IRS Filing Extensions:  The April 15th deadline for the payment of individual and corporate taxes (IRS Forms 1040 and 1120) has being extended for a period of ninety (90) days. This includes any balance owed which is less than $1,000,000 for individuals, and $10,000,000 for corporations. However, your tax returns are still due April 15th without an extension.
  • Florida Zero-Interest Loans: Florida “Bridge Loans” are available for qualified small business owners: https://org/to see if you may qualify for a bridge loan.
  • Small Business Association Loans:  Small Business Association Loans Available: https://sba.gov/ela/Declarations/Indexto check and see if the county that you operate your business in has been declared a “disaster zone” and thus eligible to apply for Small Business Association (“SBA”) loan.

House Bill 6201 is expected to include additional relief for all Americans, particularly small business owners affected by the pandemic. We will inform you as developments progress.

In the meantime, reach out to any current vendors and creditors and try to negotiate modified payment terms for debts that are outstanding and that are payable within the next quarter. Speak to your landlord about your contractual rental obligations; see if your lease has a “force majeure” clause which covers this type of catastrophic event which may temporarily relieve you of your rental obligations until the emergency is declared terminated by state or local government.

If you need to temporarily layoff staff, direct them to available unemployment benefits. If staff can continue to work, mitigate, or discontinue, any overtime. Convert waiters and waitresses to delivery personnel if your business is allowed to deliver goods.

EPGD is here for you and will continue to be here for you during this Coronavirus pandemic.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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Eric Gros-Dubois

Eric P. Gros-Dubois founded EPGD Business Law in 2013 and is the current head of the firm’s corporate, estate planning, and tax practice, and manages the firm’s Washington D.C. office. With a JD and MBA, and a specialization in finance, Eric is able to step back and view the legal world through a commercial lens while also acting as a trusted business advisor for his clients. He does his best to be solutions oriented, and tries to think like a business owner, not just a lawyer.


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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