Right to counsel

NOTE: this is a very complex area of law, especially as it relates to stay-at-home orders issued by the states.  Please read our primer on quarantine/isolation law before reading this specific state law.

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In a public health emergency, the state health officer can order “…an individual to be examined, tested, vaccinated, treated, isolated, or quarantined for communicable diseases that have significant morbidity or mortality and present a severe danger to public health.”  Fla. Stat. § 381.00315(1)(c)(4).  Outside the context of a public health emergency, “the department has the duty and the authority to declare, enforce, modify, and abolish the isolation and quarantine of persons, animals, and premises as the circumstances indicate for controlling communicable diseases or providing protection from unsafe conditions that pose a threat to public health.”  Fla. Stat. § 381.00315(4).  Any order made pursuant to Fla. Stat. § 381.00315(4) is immediately enforceable.  Fla. Stat. § 381.00315(4); Fla. Stat. § 381.0012.  The requirements for quarantine orders are set out in the Florida Administrative Code, § 64D-3.038.  There is no specific process to contest the order outlined, though administrative remedies may be available as it is an administrative order.

For tuberculosis specifically, “a person may not be ordered by a circuit court to be hospitalized, placed in another health care facility or residential facility, or isolated from the general public in the home, unless: (c) The court advises the person of the right to have counsel present. If the person is insolvent and unable to employ counsel, the court shall appoint legal counsel for the person pursuant to the indigence criteria in s. 27.52.”  Fla. Stat. § 392.56(3)(c). 

Additionally, for tuberculosis control, “a warrant requiring a person to be apprehended or examined on an outpatient basis may not be issued unless: (c) The court advises the person of the right to have legal counsel present.  If the person is insolvent and unable to employ counsel, the court shall appoint legal counsel for the person pursuant to the indigence criteria in s. 27.52.”  Fla. Stat. § 392.55(4)(c).

For a person with a sexually transmissible disease, the department of health may petition the circuit court for “…to order a person to be isolated, hospitalized, placed in another health care or residential facility, or isolated from the general public in his or her own or another’s residence, or a place to be made off limits to the public as a result of the probable spread of a sexually transmissible disease…”  Fla. Stat. § 384.28(1).  Such person has the “…right to an attorney to represent him or her, and to have an attorney appointed on the person’s behalf if he or she cannot afford one.”  Fla. Stat. § 384.28(3)(c).

Florida’s Pandemic Influenza Benchguide states, without specific reference, that the court should supply counsel for persons who are quarantined and isolated, as there is a right to counsel.  Benchguide, at p. 49 (“There is a right to counsel. If petitioner is indigent, supply counsel. (Quarantine and isolation are deprivations of a petitioner’s liberty.)”.  The Benchguide includes a discussion of habeas corpus relief, as well as the potential for appointed counsel, on page 41.