Quarantine Law in Florida and Beyond

Introduction

           The SARS COVID 2 epidemic has swept the world with unprecedented speed.  It had begun spreading in the US before most of its citizens were aware of its existence.  State and local governments, upon the advice of public health officials,  imposed quarantines and lockdowns to contain the  spread of the virus earlier in the year. Many states have lifted their initial lockdowns.  Yet the virus has come back in force, forcing governments to consider re-imposing these restrictions. Measures enacted include mandates to wear masks in public places and blanket shutdowns of businesses such as restaurants and bars.   These measures have become highly politicized, and some individuals and businesses have sued local governments for infringing on their personal freedom.

History

                 Governments have used the law to impose quarantines as long as humans have lived in urban communities.  The word “quarantine” is derived from the Italian word “quaranta.”  This is because  the city-state of  Venice had a   policy  during the 15th century of making people who wished to enter the city first wait 40 days in isolation to see if they showed symptoms of the plague.

        In America, cities and states have imposed quarantines for infectious disease since the 1700s.   Epidemics of yellow fever ravaged urban communities in North America throughout the late-eighteenth and early-nineteenth centuries. Cholera and smallpox epidemics continued throughout the nineteenth century, and plague epidemics affected Honolulu and San Francisco from 1899 until 1901.  

                The touchstone of quarantine law is public health necessity. Quarantines can impose a significant burden on people’s liberty, leading courts and legislators to create a high standard that must be met for mandatory quarantines. The state of  New York requires that quarantines be “necessary” to protect the public’s health. New Jersey's quarantine law requires that a quarantine to be “by the least restrictive means necessary to protect the public health.”

                Local and state quarantine laws predate the founding of the republic. Quarantine ordinances were passed by the cities of Boston (1647) and New York (1663). During the next century, states such as Massachusetts and New York began to enact quarantine statutes. By the time the Constitution was drafted, quarantine authority was well established. In Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding state law requiring vaccinations), the Supreme Court affirmed state police powers when necessary to protect the public’s health and safety.  Although quarantine is principally a state and local power, the federal government has limited quarantine authority to prevent international and interstate spread of infection.

Legal Standards

           Civil commitment and quarantine are subject to the same legal analysis.   Both implicate a fundamental interest of people to move freely.    Both also involve state action restricting individual liberty to protect the public at large from disease and danger.  Civil commitment is a  restrictive form of quarantine.

            Although the states have the authority to civilly confine an individual, the Supreme Court has established strict standards for the civil commitment process.  The cases examined by the Court primarily involve civil commitment of the mentally ill. Lower courts have applied constitutional standards for civil commitment to other forms of civil confinement, notably quarantines. Best v. St. Vincents Hosp. (2003), 2003 U.S. Dist LEXIS 11354 .

        The Supreme Court has established three key requirements for civil commitment. First, commitment must be based on an individualized risk assessment, that must be supported by scientific evidence. Second, the proposed confinement must be the least restrictive means available to advance the state’s interests. Third, the state must provide individuals subject to quarantine procedural due process rights, including hearings to challenge their confinement..

Individualized risk assessment

           An individual risk assessment means that, before a state may confine a person, it must make a determination that the individual presents a risk to the public.   The determination must be based on scientific evidence.

       Recognizing that a quarantine infringes on liberty, Courts  have not allowed government to  quarantine a class of people absent a determination that all its members pose a public health risk.   Best v. St. Vincents Hosp.  SDNY 2003.

          A landmark case challenging a state’s authority to impose mass quarantine   is Compagnie Francaise de Navigation a Vapeur, Plff. in Err., v. State Board of Health, Louisiana, et al. 186 US 380, 1900.   This lawsuit was brought by the operators of a steamship against the Louisiana health authority for refusing to allow 408 Italian passengers, many immigrants, to disembark under a law that refused entry to all immigrants who arrived by boat.   The rationale for the law was to prevent the spread of disease.  The passengers, however, had been certified free of disease when the ship left its port of departure and again when it arrived.  The Supreme Court struck down the law as unconstitutional, because:

- it infringed on the due process rights of the passengers,  and

- it was not the least restrictive means to ensure public health.

Least restrictive means

         Curtailing a person’s fundamental personal liberties, if justified by a strong state interest, must be narrowly tailored. The Supreme Court has stated, “Even [when] the governmental purpose [is] legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488.

         Courts have applied this requirement to weigh an individual’s liberty interests against the state’s interest to  prevent the spread of contagious disease —See, Matter of New York City v. Antoinette R., 165 Misc. 2d 1014 (1995) (permitting detention in a hospital of an individual with tuberculosis who refused to voluntarily comply with appropriate medical treatment).

Procedural due process

                Procedural due process, including the right to a hearing, is fundamental to the U.S. constitutional scheme. As the Supreme Court has stated plainly: “The Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). Civil confinement is such an interest.

     Courts have also upheld the right of a confined individual to a hearing in the infectious disease context,. See Best (above); Greene v. Edwards, 164 W. Va. 326 (1980).

Recent Trends in Quarantine Law

           The 1944 Public Health Service Act was passed "to apprehend, detain, and examine certain infected persons who are peculiarly likely to cause the interstate spread of disease." This law clearly established the federal government's quarantine authority for the first time. It gave the United States Public Health Service responsibility for preventing the introduction, transmission and spread of communicable diseases from foreign countries into the United States. It also  expanded quarantine authority to include incoming aircraft.

No federal quarantine orders were issued from 1963 until 2020.

Florida’s Quarantine Laws

Florida has several statutes that empower the state to impose public health measures.

 Florida provides for taking individuals into quarantine under four separate statutory sections for:

•Communicable disease (29 FRS sec. 381.0011 [6])

•Communicable disease where a “public health emergency” has been declared (64   FAC  sec. 64D-3.0071)

 •Sexually transmitted diseases (29 ch.384)

 •Tuberculosis (29 ch. 392)   

Florida law also empowers the state health officer to declare a public health emergency.

         According to statute (29 FRS sec. 381.00315), a public health emergency is any occurrence or threat that “may result in substantial injury or harm to the public health from infectious disease, chemical agents, nuclear agents, biological toxins or situations involving mass casualties or natural disasters.” 

        The declaration of a public health emergency enhances the power of law enforcement to enforce quarantine.  The relevant statute provides that any order of the state health officer is immediately enforceable by a law enforcement officer (without a public health emergency in place, the Department of Health would need to apply to a court to enforce a quarantine order against a recalcitrant individual.)

COVID-19 Pandemic

       On January 30, 2020 195 American citizens were quarantined at a military base for several weeks in California after being evacuated from China during the COVID-19 pandemic.

            During early April 2020, 2.6 billion people worldwide were living under some form of  Covid-related lockdown.      Numerous American states and cities have imposed lockdowns and restrictions on economic activity to stem the virus’s spread.    

      Florida Governor Ron DeSantis declared a coronavirus public health emergency in the sunshine state on March 9th.  He has issued several executive orders concerning public health since that time.  Some of these orders have given local governments flexibility to impose restrictions to contain the spread of covid-19.   Other orders from March and April temporarily closed public areas, such as South Florida beaches, that were deemed to be coronavirus hotspots. 

         In late June and early July, Florida has experienced sharp increases in new Covid-19 infections as well as Covid-19 related deaths.  While DeSantis has extended the public health emergency order, he has so far failed to impose state-wide restrictions on businesses or mandates to wear masks in public. Instead, South Florida county governments have closed businesses and imposed curfews to deal with the explosive resurgence of coronavirus.