[RPPTL LandTen] RPPTL RPLeasing - Executive Order 20-137 & General Concerns With The Purported 'Suspension' by the Governor

Wed Jun 3 09:34:53 PDT 2020

You wonder when you see an order like the one attached whether it was intentional or a mistake in drafting to suspend ALL residential evictions when the EO was specifically targeted at nonpayment cases.

There are some tenants causing major issues, especially in multifamily, indeed terrorizing entire buildings, but our hands are tied.

Then you add the indefinite Supreme Court writ hold on top of all of it.  The icing on the cake. 

Harry

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary P. Sabol, Esq.
Sent: Wednesday, June 03, 2020 12:09 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] RPPTL RPLeasing - Executive Order 20-137 & General Concerns With The Purported 'Suspension' by the Governor

I too have wondered about the validity and enforceability of this, although not quite as thoroughly thought out.  Appreciate your in depth analysis.  Seems there's nobody advocating for the other side of these Orders.  Not all landlords have mortgages and not all landlords are giant corporations who can afford to ride this out.  The other issue that I am running into is filing evictions for cases unrelated to payment of rent (I have a number of cases where people have rented out mother in law cottages and are literally being terrorized by the tenant in their own home or have rented out their homes for short term vacation rentals) and Judges refuse to take any action on the cases.  Seems that all evictions have been thrown into a single basket and there's been no effort to take the time to consider whether the Executive Orders even apply to the case.

Cary

Cary P. Sabol, Esq. J.D. (2001), LLM (2009)

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-------- Original Message --------
Subject: [RPPTL LandTen] RPPTL RPLeasing - Executive Order 20-137 &
General Concerns With The Purported 'Suspension' by the Governor
From: Jeremy Cranford < <mailto:JCranford at flaattorney.com> JCranford at flaattorney.com>
Date: Wed, June 03, 2020 11:52 am
To: RPPTL Landlord Tenant Committee < <mailto:landten at lists.flabarrpptl.org> landten at lists.flabarrpptl.org>

Dear RPPTL RPLeasing Committee Colleagues,

RE: RPPTL RPLeasing - Executive Order 20-137 & General Concerns With The Purported 'Suspension' by the Governor

I imagine almost all of you already know, but I wanted to be certain as I havn’t seen any chatter about it on any of the listservs: The Governor has extended his purported ‘suspension’ of the non-payment eviction and residential mortgage foreclosure statutes.  The new order, EO 20-137 (  <https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-137.pdf> https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-137.pdf ) purports to extend the ‘suspension’ until July 1.

I’ve discussed it in other listservs, but since the beginning, I have been highly skeptical of the validity of such a purported ‘suspension’. As a matter of separation of powers, I begin from a base concept that no part of the executive branch (here, the Governor) can ‘suspend’ legislative enactments.  (I’ll leave out martial law for now). (Aside: I also have concerns about circumstances in which the executive chooses or makes it a policy of not complying with/enforcing legislative enactments – but I’ll leave that discussion for another time though I feel it has led to the current state in which the executive feels empowered to practically-speaking ‘override’ legislative enactments).

That being said, when the Governor issued Executive Order Number 20-94 (Emergency Management – COVID-19 – Mortgage Foreclosure and Eviction Relief), I wanted to understand the basis on which he asserted his authority to ‘suspend’ a legislative enactment (“any statute providing for a mortgage foreclosure cause of action” and “any statute providing for an eviction cause of action solely as it relates to non-payment of rent by residential tenants due to the COVID-19 emergency”).

In that order, the Governor cited to:

1.            Article IV, Section (1)(a) of the Florida Constitution (which only purports, generally, to establish/recognize the office of Governor) and

2.            Chapter 252, Florida Statutes; and 

3.            “all other applicable laws”.

“all other applicable laws” provided me no guidance to investigate the assertion of power.  Again, perhaps I am just unaware of additional powers granted in time of emergency generally. The citation to the Florida Constitution provide me no guidance to investigate the assertion of power. Again, perhaps I am just unaware of additional powers granted in time of emergency generally.

As a result of my lack of familiarity with ‘all other applicable laws’, the general emergency powers of the office (outside of the statute), and the ‘penumbras’ that might arise from the Florida Constitution article which purports to recognize the office of Governor, I am going to proceed under the only asserted basis I seem to have a reasonable path to analyze: Chapter 252, F.S.

Chapter 252, F.S. purports to, in pertinent part (concerning suspension of legislative enactments), delegate from the Legislature to the Governor only a power to “[s]uspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of any state agency, if strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.” Section 252.36(5)(a), F.S. As best I can tell, this is intended to allow the Governor to ‘cut through procedures’ but not to ‘alter substantive rights’ or to change (or suspend) entitlements.  The clearest example of this kind of ‘suspension’ would, in my view, be competitive bidding requirements preventing the executive from obtaining needed supplies to respond to an emergency.

Consequently, I don’t think Chapter 252, F.S. authorized the Governor (the executive) to suspend eviction or foreclosure entitlements or processes.

(Aside: Of note is that Section 252.33(4), F.S. provides “Nothing in Section 252.31-252.60 shall be construed to: . . . . (4) Limit, modify, or abridge the authority of the Governor to proclaim martial law or exercise any other powers vested in the Governor under the constitution, statutes, or common law of this state independent of, or in conjunction with, any provisions of ss. 252.31-252.60.”.  Hence, it makes clear that, if those powers existed outside of Chapter 252, the legislature wasn’t purporting to ‘occupy the field’ so as to reduce those powers that were otherwise available.)

(As to the language of the order itself, I would note that it purports to ‘suspend foreclosure statutes’ but foreclosure itself was a remedy created by the Court – not by statute – and the statute really only seemed to codify/clarify the requirements and process therefore – so suspension of the statute wouldn’t necessarily prevent the process from proceeding.  Indeed, to the extent it is procedural, the legislature never had the power to enact it without the Court adopting it – so how can the legislature withdraw it without the Court adopting the withdrawal?) (As to eviction, I am under the impression that was statutorily created).

I would note, however, that if the Florida legislature enacted a moratoria, the US Supreme Court has previously permitted the same to survive a constitutional ‘impairment of contract’ challenge (under an analysis I don’t agree with – providing a requirement of ‘substantial impairment’ as opposed to ‘impairment’). (Please note: ‘impairment of contract’ is not a restriction on Federal legislation, only state legislation – and I can’t really explain (nor understand) why action by the executive taking the form of legislation wouldn’t fit as ‘legislation’ of a State).

Sincerely,

Jeremy T. Cranford

____________________________________________

Jeremy T. Cranford, Attorney, LL.M. (Real Estate)

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From:  <mailto:landten-bounces at lists.flabarrpptl.org> landten-bounces at lists.flabarrpptl.org < <mailto:landten-bounces at lists.flabarrpptl.org> landten-bounces at lists.flabarrpptl.org> On Behalf Of Harry Heist
Sent: Wednesday, June 3, 2020 9:50 AM
To: 'RPPTL Landlord Tenant Committee' < <mailto:landten at lists.flabarrpptl.org> landten at lists.flabarrpptl.org>
Subject: [RPPTL LandTen] Monroe County

Anyone handle Monroe County for residential evictions (multifamily)?

I have a referral.

Thanks! 

Harry

LAW OFFICES OF 
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:   <http://www.evict.com/> www.evict.com 
Email:  <mailto:harry at evict.com> harry at evict.com

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