This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 3/11/2022
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/HB 215 Emergency Orders Prohibiting Religious Services or Activities
SPONSOR(S): Pandemics & Public Emergencies Committee; DiCeglie and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 254
FINAL HOUSE FLOOR ACTION: 88 Y’s
29 N’s GOVERNOR’S ACTION: Pending
SUMMARY ANALYSIS
CS/HB 215 passed the House on March 2, 2022, as CS/SB 254.
The State Emergency Management Act (Act) gives the Governor, the Division of Emergency Management,
and the state’s political subdivisions the authority to issue emergency orders during a state of emergency and
provides for the duration of such orders.
The bill provides that no emergency order authorized under the Act may directly or indirectly prohibit religious
institutions from conducting regular religious services or activities. However, the bill provides that a general
provision in an emergency order that applies uniformly to all entities in the affected jurisdiction may be applied
to a religious institution if the provision is in furtherance of a compelling governmental interest and is the least
restrictive means of furthering that interest.
The bill does not appear to have a fiscal impact on the state or local governments.
Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2022.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Background
State Emergency Management Act
The State Emergency Management Act (Act)
1
establishes the framework for how Florida prepares for,
responds to, and recovers from emergencies and disasters. It confers upon the Governor, the Division
of Emergency Management,
2
and the governing body of each political subdivision
3
certain powers in
the event of emergencies,
4
including public health emergencies
5
and disasters
6
resulting from natural,
7
technological,
8
or manmade
9
causes. These emergency powers are designed to:
Ensure the state’s preparations will be adequate to deal with, reduce vulnerability to, and
recover from such emergencies and disasters;
Provide for the common defense and protect the public peace, health, and safety; and
Preserve the lives and property of the people of the state.
10
The individual powers are broad, but also include specific parameters in which they may be executed.
Use of funds in response to a declared state of emergency is subject to transparency and auditing
requirements, as outlined in the Act.
11
Governor
The Act vests the authority to declare a state of emergency in the Governor
12
and authorizes him to
assume or delegate direct operational control over all or any part of the emergency management
functions in the event of an emergency.
13
This authority includes issuing executive orders,
proclamations, and rules that have the force and effect of law.
14
Such orders, proclamations, and rules
last for 60 days but may be renewed as necessary throughout the emergency if the renewal specifically
states which provisions are being renewed.
15
However, the Legislature may, by concurrent resolution,
terminate a declared state of emergency or any order, proclamation, or rule made pursuant thereto.
16
The Act also authorizes the Governor to order the closure of schools or businesses if the Governor
states specific public safety concerns that necessitate such closures and regularly reassesses the
1
See ch. 252, F.S.
2
S. 14.2016(1), F.S.
3
The Act defines “political subdivision” as any county or municipality created by law. S. 252.34(10), F.S.
4
“Emergency” means any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results
or may result in substantial injury or harm to the population or substantial damage to or loss of property. S. 252.34(4), F.S.
5
“Public health emergency” means any occurrence, or threat thereof, whether natural or manmade, which results or 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, declared as a public health emergency by the State Health Officer. S. 252.34(11), F.S.
6
“Disaster” means any natural, technological, or civil emergency that causes damage of sufficient severity and magnitude to result in a
declaration of a state of emergency by a county, the Governor, or the President of the United States. S. 252.34(2), F.S.
7
“Natural emergency” means an emergency caused by a natural event, including, but not limited to, a hurricane, storm, flood, severe
wave action, drought, or earthquake. S. 252.34(8), F.S.
8
“Technological emergency” means an emergency caused by technological failure or accident, including, but not limited to, an
explosion, transportation accident, radiological accident, or chemical or other hazardous material incident. S. 252.34(12), F.S.
9
“Manmade emergency” means an emergency caused by an action against persons or society, including, but not limited to, enemy
attack, sabotage, terrorism, civil unrest, or other action impairing the orderly administration of government. S. 252.34(7), F.S.
10
S. 252.32, F.S.
11
S. 252.3611, F.S.
12
S. 252.36(2), F.S. A declaration of a state of emergency must be filed with the Division of Administrative Hearings within five days;
otherwise, the declaration is void. S. 252.36(3)(b), F.S.
13
S. 252.36(1)(a), F.S.
14
S. 252.36(1)(b), F.S.
15
Id.
16
S. 252.36(3)(a), F.S.
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emergency to determine whether schools and businesses can reopen safely.
17
Further, the Act
specifically authorizes the Governor to use all resources of state government and of the state’s political
subdivisions when reasonably necessary to cope with an emergency.
18
Although the emergency powers reside in the Governor, the Governor may delegate certain powers to
the State Coordinating Officer to manage and coordinate emergency efforts.
19
The Governor must
delegate emergency responsibilities to officers and agencies of the state and to political subdivisions
before an emergency or threat of an emergency and must use the services and facilities of existing
officers and agencies of the state and of the state’s political subdivisions as the state’s primary
emergency management forces. All such officers and agencies must cooperate with and extend their
services and facilities to the Division of Emergency Management as it may require.
20
Division of Emergency Management
The Division of Emergency Management (division), established within the Executive Office of the
Governor, is responsible for all professional, technical, and administrative support functions necessary
to carry out its responsibilities and emergency powers under ch. 252, part I, F.S. The director of the
division, appointed by and serving at the pleasure of the Governor, is the head of the division for all
purposes.
21
The Act charges the division with preparing and implementing a comprehensive emergency
management plan that includes components addressing:
Evacuation;
Shelter;
Post-disaster response and recovery;
Additional provisions for preparedness, response, recovery, and mitigation that the division
identifies as necessary;
Coordinated and expeditious deployment of state resources;
A system of communications and warnings to the public;
A schedule for annual preparedness exercises; and
Assignment of emergency support duties to various state agencies and personnel.
22
The division also oversees the development and implementation of the emergency preparedness plans
of political subdivisions
23
and emergency preparedness coordination with the federal government.
24
In
implementing the emergency management plan, the division must make recommendations on:
Structural emergency preparedness, prevention, and mitigation;
25
Ensuring that the state and political subdivisions procure the supplies needed in the event of an
emergency;
26
and
Educating and training the public, as well as state and local emergency management
personnel, in emergency response plans.
27
17
S. 252.36(1)(c), F.S.
18
S. 252.36(6)(b), F.S.
19
The State Coordinating Officer (SCO) is a representative of the Governor authorized to manage and coordinate state and local
emergency response and recovery efforts. The SCO may commit any and all state resources necessary to cope with an emergency
and has the authority to exercise powers in accordance with ss. 252.36(4)(a) and 252.36(6)-(11), F.S.
20
S. 252.36(9), F.S.
21
S. 14.2016, F.S.
22
S. 252.35(2)(a), F.S.
23
S. 252.35(2)(b)–(d), F.S.
24
S. 252.35(2)(e), (r), F.S.
25
S. 252.35(2)(f), F.S.
26
S. 252.35(2)(g), (u), F.S.
27
S. 252.35(2)(i)–(l), (n), (v), F.S.
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During an emergency, the division may delegate and provide for the sub-delegation of duties as
necessary and appropriate.
28
Additionally, under ch. 120, F.S.,
29
the division may create, implement,
administer, adopt, amend, and rescind rules as needed to carry out its duties.
30
The division must
report biennially to the President of the Florida Senate, the Speaker of the Florida House of
Representatives, the Chief Justice of the Florida Supreme Court, and the Governor on the status of the
emergency management capabilities of the state and its political subdivisions.
31
Political Subdivisions
The governing body of each of the state’s political subdivisions has an innate responsibility to
safeguard the life and property of its citizens.
32
To provide effective and orderly governmental control
and coordination of emergency operations, political subdivisions also have certain duties and
responsibilities, including a county’s duty to adopt an emergency management plan that is coordinated
and consistent with the state comprehensive emergency management plan and program.
33
A political subdivision may declare a state of local emergency if an emergency affects only that political
subdivision.
34
Declaring a state of local emergency triggers the political subdivision’s ability to request
state assistance or invoke emergency-related mutual-aid assistance.
35
However, an emergency order
issued by a political subdivision must be narrowly-tailored to serve a compelling public health or safety
purpose.
36
Further:
Only a mayor, city manager, or board of county commissioners may declare a state of local
emergency.
37
A local state of emergency lasts for seven days but may be extended in seven-day
increments.
38
A local emergency order lasts for seven days but may be extended in seven-day increments for
up to 42 days.
39
After a local emergency order expires, the political subdivision may not issue a substantially
similar emergency order.
40
Should the Governor determine that a local emergency order unnecessarily restricts individual rights or
liberties, the Governor may invalidate the order at any time.
41
Political subdivisions may also make, amend, and rescind orders and rules as necessary for
emergency management purposes if such rules are consistent with any orders or rules adopted by the
division or by any state agency exercising a power delegated to it by the Governor or the division.
42
All
orders and rules adopted by a political subdivision have the full force and effect of law when filed in the
office of the clerk or recorder of the political subdivision within three days of their announcement, but
any order or rule inconsistent with the Act or the Florida Emergency Planning and Community Right-to-
28
S. 252.35(2)(w), F.S.
29
Ch. 120, F.S., codifies the Administrative Procedure Act.
30
S. 252.35(2)(y), F.S.
31
S. 252.35(2)(x), F.S.
32
S. 252.38, F.S.
33
S. 252.38(1)(a), F.S.
34
S. 252.38(3)(a)5., F.S.
35
Id.
36
S. 252.38(4)(b), F.S.
37
State Emergency Response Team, State of Florida 2020 Comprehensive Emergency Management Plan, Florida Division of
Emergency Management, p. 15 (2020), https://www.floridadisaster.org/globalassets/cemp/2020-cemp/2020-state-cemp.pdf (last visited
Mar. 8, 2022).
38
S. 252.38(3)(a), F.S.
39
S. 252.38(4)(c), F.S.
40
S. 252.38(4)(e), F.S.
41
S. 252.38(4)(d), F.S.
42
S. 252.46, F.S.
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Know Act is suspended to the extent that such conflict exists.
43
Furthermore, a person who violates a
rule or order issued pursuant to either act commits a second-degree misdemeanor punishable by up to
60 days in jail and a $500 fine.
44
Federal and State Constitutional Law Regarding Religion
The relationship between religion and government in the United States is governed by the First
Amendment to the U.S. Constitution,
45
which both prevents the government from establishing religion
(through the Establishment Clause) and protects privately initiated religious expression and activities
from government interference and discrimination (through the Free Exercise Clause). Specifically, the
First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of
grievances.
Similarly, article I, section 3 of the Florida Constitution contains an Establishment Clause and a Free
Exercise Clause. Specifically, article I, section 3 states:
There shall be no law respecting the establishment of religion or prohibiting or penalizing
the free exercise thereof. Religious freedom shall not justify practices inconsistent with
public morals, peace or safety. No revenue of the state or any political subdivision or
agency thereof shall ever be taken from the public treasury directly or indirectly in aid of
any church, sect, or religious denomination or in aid of any sectarian institution.
Establishment of Religion
Under the Establishment Clause of the First Amendment to the U.S. Constitution, the government must
maintain neutrality in its treatment of religion.
46
The same understanding applies under article I, section
3 of the Florida Constitution, as Florida courts have generally held that in any state issue the federal
constitution represents the “floor” for basic freedoms, while the state constitution represents the
“ceiling.”
47
In general, when a law does not discriminate against any particular religion, courts apply the
Lemon Test, under which the law must have a secular purpose, its primary effect must not advance or
inhibit religion, and it must not result in excessive entanglement between church and state.
48
Florida’s Establishment Clause differs from its federal counterpart by prohibiting the use of state
revenue either directly or indirectly in the aid of any church, sect, or religious denomination or in aid of
any sectarian institution.
49
43
S. 252.46(2), F.S. Such emergency orders must also be made available via a conspicuous link on the political subdivision’s website.
S. 252.46(3), F.S.
44
S. 252.50, F.S.
45
U.S. Const. amend. I.
46
Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
47
Warner v. City of Boca Raton, 887 So. 2d 1023, 1030 (Fla. 2004) (citing Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992)).
48
See Lemon v. Kurtzman, 403 U.S. 602 (1971).
49
See Council for Secular Humanism, Inc. v. McNeil, 44 So. 3d 112, 117 (Fla. 1st DCA 2010) (finding that article 1, section 3 of the
Florida Constitution prohibits payments from the state to faith-based groups providing substance abuse transitional housing). But see
Espinoza v. Mont. Dep’t of Rev., 140 S. Ct. 2246 (2020) (application of the Montana constitution’s no-aid provision to bar religiously
affiliated schools from participating in a state-operated scholarship program violated the federal constitution’s Free Exercise Clause).
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Free Exercise of Religion
The federal Free Exercise Clause directs that no law may discriminate against some or all religious
beliefs or regulate or prohibit conduct undertaken for religious reasons.
50
Florida courts have generally
interpreted Florida’s Free Exercise Clause as coequal to the federal clause.
51
Additionally, the Florida Religious Freedom Restoration Act (FRFRA), modeled on the federal Religious
Freedom Restoration Act, specifically protects a person’s right to the free exercise of religion by
creating a heightened standard of review for government actions that substantially burden a person’s
exercise of religion.
52
Under the FRFRA, the government may not substantially burden the exercise of
religion unless there is a compelling government interest and the burden imposed is the least restrictive
means of achieving that interest.
53
What constitutes a substantial burden is not defined by the FRFRA,
but the term is generally understood to apply to a situation in which “an individual is required to choose
between following his or her religious beliefs and receiving a governmental benefit or when an
individual must act contrary to his or her religious beliefs to avoid facing legal penalties.”
54
Recent Litigation
The constitutionality of emergency orders relating to religious institutions is an evolving matter. Most
recently, in April 2021, the U.S. Supreme Court granted injunctive relief to plaintiffs in a challenge to a
California emergency order that, in response to the COVID-19 pandemic, restricted religious
gatherings, among other activities.
55
The Court found that the restriction violated the Free Exercise
Clause and based its findings on three applicable principles:
56
Government regulations are not neutral and generally applicable whenever they treat any
comparable secular activity more favorably than religious exercise;
Whether two activities are comparable for purposes of the Free Exercise Clause must be judged
against the asserted government interest that justifies the regulation at issue; and
To satisfy strict scrutiny, the government must show that “measures less restrictive of [religious
institutions] could not address [the government’s] interest” and that “the religious exercise at
issue is more dangerous than [the other activities permitted by the government] even when the
same precautions are applied.”
Effect of Proposed Changes
The bill creates s. 252.64, F.S., within the State Emergency Management Act, to provide that no
emergency order authorized under the Act may directly or indirectly prohibit religious institutions from
conducting regular religious services or activities. However, the bill provides that a general provision in
an emergency order that applies uniformly to all entities in the affected jurisdiction may be applied to a
religious institution if the provision is in furtherance of a compelling governmental interest and is the
least restrictive means of furthering that interest.
The bill defines the term “religious institution” to mean a church, ecclesiastical or denominational
organization, or established physical place for worship in this state at which nonprofit religious services
and activities are regularly conducted and carried on and to include bona fide religious groups that do
50
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993).
51
Warner, 887 So. 2d at 1030.
52
See ch. 761, F.S.
53
S. 761.03, F.S.
54
Whitney K. Novak, Cong. Research Serv., IF11490, The Religious Freedom Restoration Act: A Primer, (2020),
https://crsreports.congress.gov/product/pdf/IF/IF11490 (last visited Mar. 8, 2022).
55
See Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam). Compare this case to a May 2020 Supreme Court case concerning
California’s emergency order in which the Court denied injunctive relief to a church. In his concurring opinion, Chief Justice Roberts
noted that similar or more stringent restrictions applied to comparable secular gatherings, while more lenient restrictions were placed
only on dissimilar gathering places where people are not typically expected to gather in large groups or remain for long periods of time.
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring).
56
Tandon, 141 S. Ct. at 1296.
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not maintain specific places of worship. Under the bill, the term also includes a separate group or
corporation that forms an integral part of a religious institution that is exempt from federal income tax
and that is not primarily supported by funds solicited outside of its own membership or congregation.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.