City attorney recommends against setting a curfew, based on governor’s ‘safer-at-home’ executive order
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From concerns about the impact the novel coronavirus pandemic will have on the City of Sarasota budget to consideration of a curfew to general updates about how city staff is continuing to function, the city commissioners on April 6 covered considerable ground during a workshop that lasted almost exactly two hours and 45 minutes.
The only board member physically present in the Commission Chambers at City Hall was Mayor Jen Ahearn-Koch. City Auditor and Clerk Shayla Griggs and Deputy City Manager Marlon Brown joined Ahearn-Koch, sitting at the opposite ends of the dais. The other board members and staff participated in the discussion via telephone.
Among the revenue worries raised, Vice Mayor Shelli Freeland Eddie asked City Attorney Robert Fournier to research whether the covenants the commission approved for the bonds to finance the St. Armands parking garage include language referencing “acts of God … that might give us some leverage to make some adjustments …”
“I have not looked at [those],” Fournier responded, adding that he would provide a report for the commission after he had concluded the research.
Freeland Eddie repeatedly voted against steps the commission took several years ago in planning to use parking meter revenue to pay the debt service for the garage bonds.
In October 2017, she cast the lone vote against issuing the $17.5 million in bonds, which included the expense of the garage as well as the burying of electric lines on the John Ringling Causeway and related work. At the time, Freeland Eddie voiced worry about the potential that the city’s General Fund would have to cover any shortfall in the debt service if the meter program did not generate sufficient revenue.
During the April 6 workshop, city Finance Director Kelly Strickland acknowledged the need to address the lack of parking revenue because of the closure of so many businesses even before Gov. Ron DeSantis issued his April 1 “safer-at-home” executive order. Earlier, DeSantis had issued another executive order to shut down restaurants and bars.
“Parking is an area of major concern,” Strickland said, as any unexpected shortfall in meter revenue would have an effect on planning for the city’s Fiscal Year 2021 budget.
Strickland told the commissioners that she and her staff already are working on projections for revenue and expenditures for the remainder of this fiscal year, which will end on Sept. 30.
City Manager Tom Barwin added that approximately 47% of the city’s General Fund revenue comes from property tax payment. The good news, he continued, is that over 90% of those taxes had been paid as of that date.
The second biggest component of the General Fund, he said, is about $10 million in communications tax revenue and revenue sharing from the state. He added that he also anticipates downturns in local sales tax and gas tax revenue.
Strickland told the commissioners that she and her staff would work on a variety of scenarios for them to review, as they would not have the first indications of shortfalls until late May.
Barwin added that the resulting report would be ready for the board members later this month, probably by the time they hold their next session, planned for April 20.
In the meantime, in response to a question from Commissioner Hagen Brody, Barwin reported, “We have implemented a hiring freeze.”
The curfew proposal
Commissioner Brody this week also raised the issue of imposing a curfew, citing Manatee County leaders’ decision on April 2 to take such a step to keep people at home between 10 p.m. and 5 a.m.
When he asked how Sarasota Police Department Chief Bernadette DiPino felt about the prospect of the City Commission’s following that lead, DiPino replied that she had had concerns about more people congregating in the city as a result of the Manatee Commission’s decision. She likened it to what she noted was a big increase in boaters using the 10th Street Boat Ramp in Sarasota after Manatee County closed its boat ramps. (Sarasota leaders subsequently closed the city’s boat ramps.)
Moreover, DiPino continued, “This coming weekend is traditionally a very busy weekend,” as April 12 is Easter Sunday.
“It wouldn’t be any different than what we’re enforcing now,” she added of a curfew, other than potentially restricting more outdoor gatherings.
Last weekend, she told the board, the Police Department responded to 59 calls about gatherings with more than 10 people, in violation of U.S. Centers for Disease Control and Prevention (CDC) guidelines. Her officers’ mantra, she added, is “Educate, encourage and enforce as necessary.” She continues to ask for public cooperation, she said, as “the lives of our first responders are placed in jeopardy when people don’t follow [the national and state social distancing directives].”
She did acknowledge to Brody that she would be concerned about the safety of her officers having to approach larger groups if a curfew were imposed. “We do have to engage with them.”
Still, she said, “We would be prepared to enforce it … if that’s the direction you go in.”
Additionally, Brody referenced a memo City Attorney Fournier sent the commissioners on April 3, in response to the Manatee County curfew. Fournier wrote, “My concern is that a City of Sarasota local emergency order imposing a curfew after 10 p.m. in the City would conflict with the Governor’s Executive Orders 20-91 and 20-92. Pursuant to Section 252.46 [of the] Florida Statutes,” Fournier continued, “a local emergency order that is in conflict with the Governor’s Executive Order has no force and effect. The City would incur liability if [the Sarasota Police Department] were directed and allowed to enforce a local order that is a nullity under state law.”
He added in the memo, “The City’s local emergency order provides a less restrictive means than a curfew to achieve the same objective or result. It is my opinion that the existing local emergency order is the means that should be used to prevent [gatherings of more than 10 people] at least until such time as the Governor’s Executive Order is amended to resolve the very real potential for conflict with a curfew or until some further written clarification from the Governor’s office is provided as to the extent of local authority to impose curfews. Any local curfews that may have been in effect up until now are, in my opinion, abrogated and superseded by the Governor’s Executive Order as of April 3, 2020. Regardless of any action that may be taken by Manatee County, it is my recommendation that a City of Sarasota emergency order imposing a general or ‘blanket’ curfew in the City after 10 pm should not be issued.”
Then Fournier offered this assessment: “In my opinion, the real issue here is whether the City of Sarasota can prohibit social gatherings of 10 or more people on private property for the duration of this public health state of emergency. This question applies not just after 10 pm at night, but at any time of day. I believe that the City has already done this by issuing the Order that was signed last Thursday, March 26, 2020, which prohibits social or recreational gatherings of 10 or more individuals ‘in the City of Sarasota.’ My recommendation is that we clarify this existing order to expressly state that it applies to private property as well as to public property. I believe that we can do this because the Governor’s Order does not expressly allow social or recreational gatherings on private property.”
During the April 6 discussion, Fournier added that if the city’s emergency order “just isn’t doing the job,” he would want to try to consult with the Office of General Counsel to the governor, whose staff, he has heard, is “very open to questions.” Only after such communication, he said, would he possibly be willing to work on a local order imposing a curfew.
Worries about the city’s Latino residents
During the workshop, Commissioner Willie Shaw raised a concern he indicated had not been addressed: Florida Department of Health in Sarasota County data suggests that a number of the city’s Latino residents might have contracted COVID-19. However, he said, they might be hesitant to seek help for fear they could face deportation if they do not have documentation necessary for legal residence in the U.S.
How can the city help them, he asked.
“We have not discussed that at the EOC [Sarasota County Emergency Operations Center] meetings,” City Manager Barwin replied. He has had heard reports from the federal and state levels, Barwin added, suggesting that anyone without documentation should not have to worry about deportation while the public health crisis is underway.
Barwin suggested that any Latino residents who feel they might be sick should go ahead and seek health care assistance.
How can the city staff get that information to those residents, Shaw asked.
“We will ask that specific question, sir,” during the next EOC call, Barwin responded, adding that he also would consult with City Attorney Fournier.
Barwin also pointed out that under the Health Insurance Portability and Accountability Act of 1996 (HIPPA), “Individual privacy has to be protected.” He said he hoped that law that would apply, as well, to any residents without legal immigration papers. In fact, he stressed, “I would hope that that would especially be honored during this crisis.”
City supplies for the crisis
As city commissioners asked questions of staff during the workshop, Todd Kerkering, the city’s emergency manager, offered details about buying supplies necessary to the handling of the COVID-19 crisis.
The system set up through the county’s emergency management system, he explained, requires city staff to try to procure items from vendors, “regardless of cost.”
When city staff is unable to obtain what it needs, he continued, staff submits a request to the county, which passes that along to state officials.
As of April 6, Kerkering continued, he had been able to work with a vendor to obtain 15,000 surgical masks, with the first batch of 5,000 due in this week.
The N95 masks with respirators, which are the preferred form of protection, he added, “are in short supply across everywhere.”
“It’s hit and miss, really,” Kerkering explained. If he finds a vendor with supplies he needs, he said, he has learned to purchase the materials “at that moment.” If he took the time to find out whether he could get a better price from another company, he added, and determined he could not, then when he reached the first vendor again, that company already would be out of the supplies he was seeking.
A clear sign of effects of the ‘safer-at-home’ order
Finally, as Mayor Ahearn-Koch asked for updates from representatives of each city department, Doug Jeffcoat, director of Public Works, offered one comment that reflected on the “safer-at-home” Executive Order that Gov. DeSantis issued on April 1.
“Probably one of the biggest operations right now — what we’re seeing with people being at home … is a lot of yard waste and bulk waste.”
The city is facing higher costs as a result, Jeffcoat said, referring to the resulting payments for the extra tonnage going into the county landfill.