'Grim Reaper' Atty Can't Revive Beach Suit, Faces Sanctions

By Dave Simpson
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Law360 (November 13, 2020, 10:58 PM EST) -- A Florida attorney who has made waves appearing as the Grim Reaper across the state during the COVID-19 pandemic lost his appeal, and could face sanctions, over his suit that asked the courts to impose beach closures and a statewide stay-at-home order, a state appellate court said Friday.

Santa Rosa Beach attorney Daniel W. Uhlfelder had argued to the Sunshine State's First District Court of Appeal that the trial court erred in dismissing his case, but in a one-page order Friday, the appellate court quickly disagreed.

"The court has reviewed the briefs and other filings in this case and finds that the appellant fails to demonstrate even an arguable legal basis for reversal," it said. "Moreover, the appellant shall show cause within fifteen days why this court should not impose sanctions, including attorney fees and costs, on him and counsel for filing this appeal, the initial brief, and the request for oral argument, which appear to be frivolous and/or filed in bad faith."

Uhlfelder filed his suit March 20 in Leon County Circuit Court at a time when Gov. Ron DeSantis had issued an order banning large gatherings and requiring social distancing on state beaches, but was resisting calls to use his broad powers under the state's emergency management statute to close all state beaches and follow the example of numerous other states by issuing a "stay-at-home" order as the new coronavirus started to spread in the U.S.

At an April 7 hearing on DeSantis' motion to dismiss, Circuit Court Judge Kevin J. Carroll dismissed the case, saying he could not find anything that would give him authority to "substitute my judgment for what the governor believes to be this exercise of discretion during a state of emergency."

But Judge Carroll also said he was entering a final judgment of dismissal so that Uhlfelder could immediately appeal to the First District.

"I do think this is a matter of importance, and I think it's a matter of time, and if the First District tells me that I'm wrong and I do have the authority, then I'm glad to address it and go from there," the judge said.

The Florida Constitution grants citizens inalienable rights to enjoy and defend life and liberty, which obligates DeSantis to take basic steps to protect their lives, Uhlfelder said in his July appeal, and the governor's failure to do so in the face of the coronavirus' spread means other branches of government must step in.

"The preservation of Floridian's [sic] lives is dependent on the judiciary protecting them, because it is clear DeSantis has no interest in protecting their lives during this deadly global pandemic where Florida has now quickly become the epicenter," Uhlfelder said in his brief.

Florida was one of the last states to impose a stay-at-home order, which came only after Uhlfelder filed his suit, he said in his appeal. And it was one of the first states to take steps to re-open, with DeSantis appointing a task force whose executive committee included no medical doctors or epidemiologist but was instead "packed with leaders of the state's largest corporations," Uhlfelder said.

"Obviously, one of the only reasons DeSantis has engaged in any basic safety measures was because of the short-lived lawsuit in this matter," Uhlfelder said in his brief. "Since the lawsuit was dismissed, DeSantis has reverted to his complete disregard for the lives of his constituents."

DeSantis declared a premature victory, stating during an April 28 visit to the White House that "Florida has done better" than other states, and despite recent spikes in cases, the Republican governor has "consistently downplayed the extent of the outbreak," Uhlfelder told the appeals court.

Uhlfelder argued that the separation of powers do not bar his claims, but mandate judicial intervention "to protect the health and welfare of Florida's citizens from DeSantis' constitutional abdication of his sworn duties."

He also argued that his case is not focused on his own belief that his suggested alternative actions are superior to the governor's, as DeSantis argued in his motion to dismiss, but focuses instead on the governor's "egregious abdication of his constitutional and statutory responsibility to take affirmative steps to protect the health, life and liberty and safety of Floridians," in the face of the pandemic.

While his brief fiercely criticized DeSantis' performance, Uhlfelder expressed a great sense of frustration with the situation, saying he has traveled the state dressed up as the Grim Reaper "just trying to get people to think about this."

Uhlfelder is represented by himself, Gautier Kitchen of The Kitchen Law Firm and Marie A. Mattox PA.

DeSantis is represented by Deputy General Counsel Nicholas A. Primrose of the Executive Office of the Governor.

The case is Uhlfelder v. DeSantis, case number 1D20-1178, in the First District Court of Appeal of Florida.

--Additional reporting by Carolina Bolado and Nathan Hale. Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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