United States: What Florida Businesses Need To Know About The COVID-19 Response

Safer at Home Orders

Effective at 12:01 a.m. on April 3, 2020, E.O. 20-91 requires "all persons in Florida" to "limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities." Essential activities include attending religious services conducted in churches, synagogues and houses of worship, participating in recreational activities, taking care of pets and caring for or assisting a loved one or friend. Essential services are specified at length in the order. The order is more restrictive for senior citizens and individuals with underlying medical conditions. They must "stay at home and take all measures to limit the risk of exposure to COVID-19." As amended by E.O. 20-92, the order supersedes any conflicting official action or order by local officials in response to COVID-19.

Under E.O. 20-89, Miami-Dade County, Broward County, Palm Beach County and Monroe County must restrict public access to businesses and facilities deemed non-essential.  Essential service establishments must adopt and maintain reasonable measures to ensure sanitation and cleanliness of premises and items that may come into contact with employees and the public and should take steps to ensure that people practice social distancing. 

All mortgage foreclosures and tenant eviction proceedings due to nonpayment of rent because of COVID-19 by residential tenants are suspended and tolled for 45 days pursuant to E.O. 20-94. The order adds that nothing therein should be interpreted as relieving individuals from their obligations to pay mortgage or rent payments.

Business, Industry and Economic Stabilization

Permit and License Deadlines Suspended and Tolled

Department of Business and Professional Regulation (DBPR) Emergency Order 2020-03 suspends and tolls through May 31, 2020, all time requirements, notice requirements and deadlines for final agency action on applications for permits, licenses, rates and other approvals. All final orders reflecting final agency action, deadlines for licensure eligibility and examination eligibility, and deadlines for filing responses to notices of intended agency action are suspended and tolled through May 31. Pursuant to DBPR Emergency Order 2020-01, DBPR had already suspended the license renewal deadline for a period of 30 days following the existing renewal deadline for any license, permit, registration or certificate with an expiration in March or April.

In E.O. 2020-002, Florida Department of Agriculture and Consumer Services (FDACS) has suspended late fees for pest control, pesticide, fertilizer, and animal feed licensees and extended reporting requirements. In E.O. 2020-004, FDACS suspended renewal application late fees for concealed weapon licensees, allowed more time for armed security officers to submit proof of annual requalification, and allowed unarmed security officer training to be conducted by video conference. In E.O. 2020-003, FDACS waives fees that would typically be imposed for late renewals of permits and registrations for solicitors of contributions, brake fluid, commercially used weights and measures (e.g., scales), motor vehicle repair shops and dealers of agricultural products. The orders may be viewed here. 

Small Business Loans Available

The Florida Small Business Emergency Loan Program, managed by the Florida Department of Economic Opportunity (DEO), will provide short-term, interest free loans to small business that experienced economic injury from COVID-19. The application period opened on March 17, 2020, and runs through May 8, 2020. The first two emergency bridge loans have been awarded.

DEO is strongly encouraging any businesses impacted that are considering Small Business Loans to take the Florida Business Damage Assessment Survey to help DEO further assess the impact of COVID-19. This information will help the DEO determine and implement additional relief programs and policies, if necessary.

In E.O. 20-93, the governor directed the Department of Management Services (DMS) to identify and deploy executive personnel and procure software and resources immediately to assist DEO with reemployment assistance.

On March 12, 2020, the U.S. Small Business Administration (SBA) announced that it will work with state governments to provide targeted, low-interest disaster recovery loans to small businesses severely impacted by the outbreak. The loans may be used to pay fixed debt, payroll, accounts payable and other bills that cannot be paid because of the disaster's impact, usually at the rate of 3.75 percent.

Category B Public Assistance Available.

The state of Florida received an Emergency Declaration (EM-432) because of COVID-19 for Category B (emergency protective measures) under the Public Assistance (PA) program, meaning that hospitals, clinics and emergency providers and various governmental entities may apply for public assistance.

Health and Medical

CMS Prioritizes Surveys and Develops a Voluntary Self-Assessment Tool

On March 23, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a survey prioritization fact sheet stating that over the next few weeks, only the following types of federal inspections will be prioritized and conducted: 1) complaint inspections and facility-reported incidents that are triaged at the Immediate Jeopardy level; 2) targeted infection control inspections of providers identified through CMS collaboration with the Centers for Disease Control and Prevention (CDC); and 3) self-assessments performed by the facility using a new infection control checklist developed by CMS that will be shared with providers and suppliers. 

Emergency Services

On March 24, 2020, the federal Department of Health and Human Services Office for Civil Rights (OCR) issued guidance to help ensure that first responders receive necessary protected health information (PHI) about individuals who may be exposed to COVID-19. The guidance makes it clear that first responders who may be at risk of infection may receive PHI as necessary for treatment purposes or to lessen or prevent a serious threat. The guidance indicates, however, that "[c]overed entities should consult other applicable laws (e.g., state and local statutes and regulations) in their jurisdiction prior to using or making disclosures of individuals' PHI, as such laws may place further restrictions on disclosures that are permitted by HIPAA."

Florida's Agency for Health Care Administration requires that all entities licensed to provide inpatient or residential services use an approved database for reporting emergency status. You can find more information about logging in to the Emergency Status System (ESS) here. Per the guidance available here, all nursing homes and assisted living facilities must make sure their information is up to date.

Emergency Order Suspends Visitation to Health Care Facilities

Pursuant to Gov. Ron DeSantis' Executive Order 20-52, the Florida Department of Emergency Management issued DEM Order No. 20-006, which suspended visitations to group homes, developmental disabilities centers, nursing homes, assisted living facilities, long-term care hospitals, homes for special services, transitional living facilities, intermediate care facilities for the developmentally disabled, adult mental health and treatment facilities, adult forensic facilities and adult family-care homes. The order applies to all visitors, unless an exception applies. The order does not apply to the facility's healthcare workers unless the worker is prohibited from entering the facility under the order's remaining criteria. The order expires on May 8, 2020, unless extended.

Non-Emergency Surgeries and Procedures Restricted 

On March 20, 2020, the Gov. DeSantis issued Executive Order 20-72 prohibiting "any medically unnecessary, non-urgent, or non-emergency procedure or surgery which, if delayed, does not place a patient's immediate health, safety, or well-being at risk, or will if delayed, not contribute to the worsening of a serious or life-threatening medical condition." In its recitals, the order indicates the purpose, such as the federal Centers for Medicare & Medicaid Services (CMS) guidance, is to conserve personal protective equipment (PPE) and control the spread of the virus. An open question is whether certain services are "procedures" and whether they require PPE or could exacerbate the spread of COVID-19. For example, there is debate about whether certain consultation, evaluation and management services are "procedures" that should be postponed.

Telehealth Expanded

As the current emergency evolves, the ability to provide healthcare when and where it is needed most will be a critical component of maintaining public health. Telehealth and telemedicine will play a significant role. On March 6, 2020, Congress passed the Coronavirus Preparedness and Response Supplemental Appropriations Act, H.R. 6074, Public Law 116-123, that relaxed certain Medicare requirements for delivering healthcare through telemedicine. More information on the federal changes (as of March 20) is available in this Holland & Knight Healthcare Blog post. Department of Health Emergency Order 20-003 provides that, for purposes of responding to COVID-19, healthcare professionals not licensed in Florida may provide healthcare services to a Florida patient, for a period of time not to exceed 30 days unless extended by an order of the State Surgeon General. OCR has indicated that it will exercise enforcement discretion regarding certain HIPAA requirements with respect to use of telehealth during the crisis. OCR has issued frequently asked questions regarding telehealth.

Travelers Subject to Quarantine

Executive Order 20-80 and 20-82 require individuals originating from the New York Tri-State Area or who have originated from there within the last 14 days to isolate or quarantine for a period of 14 days from entry into the state. Executive Order 20-86 requires individuals entering or who have entered Florida from an area with substantial community spread including the state of Louisiana, inclusive of those entering by roadway, to isolate or quarantine for 14 days from the time of entry into the state or the duration of their stay, whichever is shorter. Penalties are criminal.  Checkpoints are established on the roadways for enforcement. In addition, E.O. 20-82 and 20-86 require such individuals to inform any individual in Florida with whom they have had direct physical contact in the past 21 days that they traveled from an area with substantial community spread. Persons employed by the airlines and those performing military, emergency or health response are exempt from these orders.

Health Advisories Issued

directs the State Surgeon General and State Health Officer to issue public health advisories to all persons over 65 years of age and to at-risk persons urging them to stay home and against all social or recreational gatherings of 10 or more people.

PPE Expiration Dates Suspended

DBPR Emergency Order 2020-02 suspends the provisions of section 499.006(9), Florida Statutes, as they relate to the expiration date of personal protective equipment (PPE) that is worn to minimize exposure to hazards that cause serious workplace injuries or illnesses, including filtering facepiece respirators such as N-95 respirators and surgical masks.

Reemploying Public Servants for COVID-19 Response Eased

E.O. 20-88 tolls certain public service retirement limitations for continued employment or reemployment of certain public servants who can assist with the COVID-19 emergency response.

Food Establishment Workers Subject to Screening and Limited to To-Go

Executive Order 20-68 required restaurants to begin screening and prohibiting any employee infected with or exposed to COVID-19 from entering restaurants. Executive Order 20-71 suspends on-premises food consumption for customers of Chapter 500- and 509-licensed restaurants and food establishments while allowing them to operate for the purpose of providing delivery or take-out services.

Florida Suspends Alcoholic Beverages Sales On-Site But Allows To-Go Deliveries

Executive Order 20-68 restricted the operations of certain bars, pubs and nightclubs, serving alcoholic beverages solely for consumption on the premises, to suspend the sale of alcoholic beverages for 30 days from March 17, 2020. Executive Order 20-71 suspends the sale of alcoholic beverages by the drink or in sealed containers for consumption on the premises at all licensed alcoholic beverage vendor premises, including restaurants. The order permits vendors to sell alcoholic beverages as package sales or in sealed containers for consumption off the premises. The order also allows a specially licensed food service establishment to make package sales of alcoholic beverages under certain conditions, notwithstanding the restrictions in Section 561.20(2)(a)4., Florida Statutes. The order provides authority for licensed alcoholic beverage vendors to request the return of undamaged products purchased for events canceled in response to COVID-19, subject to conditions and recordkeeping requirements specified in the order. The order clarifies that retail stores and vendors that currently sell sealed containers of alcoholic beverages for off-premises consumption may continue such sales.

Florida Suspends Vacation Rentals

Executive Order 20-87 suspends rental of vacation rental properties not including hotels or motels, long-term rentals or vacation rentals scheduled to begin on March 28, 2020. Vacation rentals are prohibited from making new reservations or bookings and accepting new guests for check-in for the duration of the order.

Administrative and Judicial Relief 

Trial and Appellate Courts in Florida.  The Florida Supreme Court issued an order suspending speedy trial deadlines in noncriminal traffic infraction cases. The Florida Supreme Court previously suspended all grand jury and jury selection proceedings and jury trials from March 16 through March 27, 2020, and directed the lower courts to continue performing only "essential court proceedings," including those critical to the criminal justice system and public safety. Each state circuit's chief judge must review their dockets and available technology resources to maximize the use of such resources. The circuit court and appellate court responses to these directives have varied. For example, the Florida First District Court of Appeal has issued an order suspending all oral arguments through the end of April, and the Sixteenth Judicial Circuit (based in Monroe County) has issued an order limiting court proceedings only to "mission critical" matters through April 17, 2020. The Florida Supreme Court is collecting individual state court orders on its website. With respect to the federal courts in Florida, the U.S. District Court for the Southern District of Florida has continued all jury trials, while individual judges have discretion to proceed with hearings, conferences and bench trials. The Northern District has similarly canceled all jury trials and grand jury proceedings for the month of March and limited public access to the courthouses. The Middle District has issued an administrative order closing or significantly limiting public access to the courthouses, and individual divisions within the district have issued their own orders regarding the continuation of trials. All three federal courts — the Northern, Middle and Southern districts — have issued administrative orders under the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) concerning the courts' authority to conduct some criminal proceedings by video or audio conference.

Administrative Tribunals.  The Division of Administrative Hearings (DOAH) issued an order clarifying that the Tallahassee office of DOAH remains open and directing administrative law judges to review their dockets and maximize the use of telephonic or video conferencing. For DOAH hearings scheduled outside of Tallahassee, where telephone or video would be impractical, the hearings are continued until April 12, 2020. Most of the Offices of the Judges of Compensation Claims — the administrative bodies charged with hearing workers' compensation claims — remain open, although all mediations must be conducted telephonically through April 12, 2020. 

Environmental Protection

Certain Building and Environmental Permits Extended

Department of Business and Professional Regulation (DBPR) has confirmed that Executive Order 20-52 qualifies as a "natural emergency", which allows for the tolling and extension of certain permits pursuant to Florida Law. Section 252.363, Florida Statutes, provides for the tolling of valid permits and other authorizations during the declaration of a state of emergency, plus an extension for an additional six months. The tolling and extension provisions apply to the expiration of 1) development orders issued by a local government, 2) building permits, 3) Florida Department of Environmental Protection or water management district permits issued pursuant to part IV of Chapter 373, Florida Statutes, and 4) buildout dates for developments of regional impact (DRI), including any extension of a buildout date that was previously granted pursuant to Section 380.06(19)(c), Florida Statutes.

In order to take advantage of the tolling and extension option, permit holders must notify the issuing authority of their intent to do so in writing within 90 days of the termination of the emergency declaration. The notice must be in writing and identify the specific permit or other authorization qualifying for extension.

For more details see Holland & Knight alert, " Florida's State of Emergency to Manage COVID-19 Provides Opportunity to Extend Certain Permits," March 24, 2020.

FDACS Extends Time "Winter Blend" Fuel May Be Sold

The Florida Department of Agriculture and Consumer Services (FDACS) has determined that as a result of the COVID-19 global health crisis and the U.S. Center for Disease Control and Prevention's (CDC) directive to limit travel, there is an extreme and unusual oversupply of fuel meeting winter season volatility requirements, known as "winter blend" fuel. Accordingly, FDACS issued an Emergency Rule 5JER20-1 to allow winter blend fuel to be sold longer, ensuring the adequate and rapid distribution of available fuel and helping to stabilize the fuel market, and providing consumers a stable supply of gasoline.

Education

The Florida Department of Education has recommended that all Florida public and private K-12 school campuses extend campus closures through May 1, 2020. All public state colleges are closed for the spring semester. All district school board and state college board of trustees meetings through June 30, 2020, are postponed. The Florida Commission for Independent Education postponed its meetings. DACS Emergency Rule 5PER-20-2 extends the deadlines for sponsors participating in the National School Lunch Program to appeal agency action that may be issued against them by the Department.

Energy

Although the Florida Public Service Commission (PSC) has not issued any formal orders on the subject to date, most electric, gas and water utilities in Florida have voluntarily suspended late payment fees and disconnections for nonpayment of services at this point in time. The Florida Department of Management Services has restricted public access to the PSC offices to help minimize COVID-19 exposure, effective through April 19, 2020. The PSC will conduct its regularly scheduled agenda conference telephonically on March 31, 2020. Persons wishing to participate telephonically will need to contact the PSC General Counsel's Office at 850-413-6199 no later than noon on Monday, March 30, 2020. Written comments can also be filed by noon on March 30.

Florida Taxes

Florida Tax Filing Deadlines Extended

The Florida Department of Revenue issued Emergency Order 20-52-DOR-001 and Emergency Order 20-52-DOR-002 to extend certain tax filing deadlines for Florida businesses. For example, the date for citizens and businesses to pay property taxes in all Florida counties is extended from March 31 to April 15, 2020. Sales and use tax, as well as other related tax returns and payments, are normally due on the first day of the month and are late after the 20th day of the month, but the order provides:

• Taxpayers who have been "adversely affected" by COVID-19, have an extended due date to April 30, 2020, for sales and use tax, as well as other related taxes, collected in March.
• Taxpayers who have not been adversely affected by COVID-19 continue to file and remit taxes no later than the normal due date of April 20.
• Taxpayers who were unable to meet the March 20 due date will have penalty and interest waived for taxes collected in February if the taxes are reported and remitted by March 31, 2020.

"Adversely affected" taxpayer means:

• The business closed in compliance with a state or local government order and had no taxable sales transactions as a result; or
• The business experienced sales tax collections in March 2020 that are less than 75 percent of March 2019 sales tax collections; or
• The business was established after March 2019; or
• The business is registered with the Department to file quarterly.

Other tax extensions apply for the tourist development tax, new tire fees, rental care surcharge, prepaid wireless, lead acid battery fees and dry-cleaning gross receipts.  Taxpayers who fall within the definition of adversely affected but who are able to file and pay on time are encouraged to do so. The Department's special email address for COVID-19 issues is: COVID19TAXHELP@FloridaRevenue.com. The Department's general call center number is 850-488-6800.

Local Emergency Orders

Many counties and municipalities have published their own emergency orders Here is a summary of stay at home orders.