How property space and limits factor into States Re-opening

California Governor listed 6 factors to consider in re-opening the state for business:

  • Expanding testing
  • Protecting high risk groups, including seniors, the medically vulnerable and people in facilities like nursing homes
  • Ensuring hospitals have enough beds and supplies to care for patients
  • Progress in developing treatments
  • Ability of schools and businesses to support physical distancing
  • Ability to decide when to reinstitute stay-at-home orders if needed

The 3 that concern property rights:

  • whether schools can support social distancing
  • whether businesses can support social distancing
  • the ability to have additional stay at home orders (which may or may not trigger compensation)

Sacramento Bee | California will look at 6 factors to determine when stay-at-home orders will loosen, Newsom says

Anatomy of a Governor’s Executive Order to Take Property during COVID

Where: New Jersey

What does the Executive Order permit?

  • The New Jersey Civilian Defense and Disaster Control Act allows the Governor to permit the taking of property with compensation
  • Including the state commandeering/taking personal services by the State Director of Emergency Management

How will compensation be decided for these takings?

  • The Act allows the Governor to establish emergency compensation boards in each county
  • Each county board will have 3 persons appointed by the Governor 

New Jersey Governor Executive Order 113 (2020)

Legal TREND. Close + Block Beaches to prevent COVID.

Where: Florida

Why are courts are deciding whether the Governor can be forced to close beaches statewide?

  • The Governor only closed beaches in Broward and Palm Beach counties
  • Local officials would like to close other local beaches
  • Property Rights activists got involved
  • Lawsuits ensued
    • Uhlfelder v. DeSantis, Fla. Cir. Ct., 20-CA-552, 4/7/20
    • Mike Huckabee, filed a federal lawsuit on Monday over local beach closures that they claim violate their privacy and private property rights.

Bloomberg Law | Florida Judge Won’t Force State Beach Closures to Halt Virus

COVID + Government Commandeering Hotel Rooms

What government actions support the government taking hotel rooms?

  • Presidential Declaration included the Stafford Act authorizes FEMA to exercise the right of eminent domain to acquire both physical facilities and supplies
  • California Governor’s executive order allows the commandeering of any hotel or medical facility in California and use it to treat COVID-19

Compensation? Yes, but is limited to applicable federal law, state law, or the agreement a hotel reaches with the government.

Hotel Management | Can the government commandeer hotels to fight COVID-19?

Private property regulatory TREND. COVID + Drones

Where are drones being used as a method to combat the pandemic?

  • France, Italy & China use drones to monitor public places
  • Chula Vista, California is using drones to communicate with people who live in remote areas
  • Police in Derbyshire, U.K. has used drones to take photos of people engaged in nonessential activities like at the beauty shop

How are state legislative acts matching drone use for pandemics?

  • Drones will require warrants, without an exception for pandemics in Minnesota SF 3704 (2020 | MN)
  • Tennessee’s SB 1791 (2020 | TN) allows drone use by law enforcement without a search warrant to investigate the scene of a crime or to “enhance security” of public events attended by more than 100 persons. Video of public events must be posted online within 1 day.
  • New Jersey Assembly bill A2301 (2020 | NJ)  prohibits law enforcement from using drones for surveillance
  • South Dakota bill, HB1059 (2020 | SD), signed by the governor, makes it a misdemeanor to use a drone “to kill or attempt to kill a wild bird or animal,” or to use one to locate, spot or drive prey.

Governing | Legislative Watch: The Rise of Drones During the Pandemic

TX Attorney General Opinion. Occupational Licensing of Physicians & Optometrists

KP-0297 (2020) clarifies which licensing agency has authority when a physician, a retailer and an optometrist co-exist in one space.

The takeaways:

  • Physicians without a doubt can practice optometry
  • just because an act is done at the physician’s direction does not create a blanket exemption from the Texas Optometry Act 
  • without this view, the Optometry Act is negated, an optometrist remains regulated by the Optometry Board.

Anatomy of Dallas Short Term Rental Ordinance

How did Dallas begin taxing short term rentals? When a company the City hired to collect back taxes sent bills for unpaid hotel occupancy tax to short term rental owners

How will Dallas collect the hotel tax from short term rentals moving forward?

  • hosts will pay quarterly taxes
  • will not allow rental apps to collect the tax like the State of Texas and other municipalities do

How will regulation move forward? A task force will make recommendations to City Council

What are the challenges?

  • Distinguish between individual property owners &  corporate entities operating multiple properties
  • San Francisco-based Sonder intends to rent an entire 27-story apartment building in Uptown and run all 270 units as short-term rentals for 10 years

Avocate OakCliff | How will the City regulate Airbnb rentals?

TX Attorney General Opinion. Disasters + Commandeering Property.

Who is asking for an attorney general opinion? The Hood County Attorney

What questions does the Hood County Attorney want answered?

  • May local governments commandeer private property under Government Code Section 418.108, when this authority is only vested in the governor under section 418.017(c)?
  • Is temporarily closing business or access to a business a depravation of private property without the due course of law under the Fourteenth Amendment to the U.S. Constitution and Section 19 of the Texas Bill of Rights? 
  • Are the state and local executive orders unconstitutional under the Texas and United States Constitutions?

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