Filing # 105893355 E-Filed 04/06/2020 11:37:38 AM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

DANIEL W. UHLFELDER,

Plaintiff,

vs. CASE NO.: 20-CA-552

THE HONORABLE RON DESANTIS,

in his Official Capacity as Governor
of the State of Florida,

Defendant.
/

UHLFELDER’S MEMORANDUM IN OPPOSITION TO DESANTIS’S MOTION TO

DISMISS AMENDED COMPLAINT AND IN SUPPORT OF UHLFELDER’S REQUEST
FOR PRELIMINARY INJUNCTION

COMES NOW, Plaintiff, Daniel W. Uhlfelder (hereinafter referred to as “Uhlfelder”), by

and through the undersigned counsel, and files this Memorandum in Opposition to the

Defendant’s, The Honorable Ron DeSantis (hereinafter referred to as “DeSantis”) in his official

capacity as the Governor of the State of Florida, Motion to Dismiss Plaintiff’s Amended Complaint

and in support of Uhlfelder’ Request for Preliminary Injunction (Doc.13) (hereinafter referred to

as the “Motion to Dismiss”). In support thereof, Uhlfelder states as follows:

INTRODUCTION

1. On March 20, 2020, Uhlfelder filed his Complaint for Injunctive Relief, wherein

Uhlfelder prayed for the Court to issue emergency injunctive relief directing DeSantis to close all

of Florida’s beaches (Doc. 2).

2. On March 29, 2020, Uhlfelder filed his Amended Complaint for Emergency

Injunctive Relief (Doc.9) (hereinafter referred to as the “Amended Complaint”), wherein Uhlfelder

prayed for the Court to issue two preliminary injunctions directing DeSantis to order: (i) a

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statewide Beach Closure Order and (ii) a statewide Safer-at-Home Order.

3. On April 1, 2020, DeSantis filed the Motion to Dismiss alleging, inter alia, that

Uhlfelder lacks standing to bring this action, that this Court lacks the authority to grant the

requested relief and Uhlfelder has failed to satisfy the requirements for injunctive relief.

4. A motion to dismiss for failure to state a cause of action tests whether the plaintiff

has stated a cause of action, not whether the plaintiff will prevail at trial; therefore, all allegations

of the complaint must be taken as true and all reasonable inferences drawn therefrom must be

construed in favor of the nonmoving party. United Auto. Ins. Co. v. Law Offices of Michael I.

Libman, 46 So. 3d 1101 (Fla. 3d DCA 2010).

5. The First District Court of Appeal has held that “[w]hen ruling on a motion to

dismiss for failure to state a cause of action, the trial court must accept the allegations of the

complaint as true. Brewer v. Clerk of Circuit Court, Gadsden County, 720 So.2d 602, 603 (Fla.

1st DCA 1998). McKinney–Green, Inc. v. Davis, 606 So.2d 393, 394 (Fla. 1st DCA 1992) (“In

reviewing the trial court's order denying appellant's motion to dismiss, we must determine whether

the allegations, from the four corners of the complaint, sufficiently state one or more claims for

relief. We are obliged to accept all well-pled allegations of the complaint as true.” (citations

omitted)); Snow v. Byron, 580 So.2d 238, 240 (Fla. 1st DCA 1991) (“When considering a motion

to dismiss for failure to state a cause of action, a trial court must assume all of the allegations in

the complaint are true, and must draw all reasonable inferences in favor of the pleader.”); cf.,

e.g., Affordable Homes, Inc. v. Devil's Run, Ltd., 408 So.2d 679, 680 (Fla. 1st DCA

1982) (“Although the appellant properly pled that it had performed all conditions precedent as

required by the contracts, nevertheless, if ‘there is an inconsistency between the general allegations

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of material fact in (a) complaint and the specific facts revealed by (an) exhibit, and they have the

effect of neutralizing each other, the pleading is rendered objectionable.’ ”).

6. Taking the allegations Uhlfelder pled in his Amended Complaint as true, Uhlfelder

has sufficiently pleaded a cause of action for a preliminary injunction in both counts.

I. Uhlfelder has standing to sue DeSantis.

7. As DeSantis correctly notes in the Motion to Dismiss, for a plaintiff to have

standing, three criteria must be met:

First, a plaintiff must demonstrate an “injury in fact,” which is “concrete,” “distinct

and palpable,” and “actual or imminent.” Whitmore v. Arkansas, 495 U.S. 149, 155,
110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Second, a plaintiff must establish “a
causal connection between the injury and the conduct complained of.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Third, a plaintiff must show “a ‘substantial likelihood’ that the requested relief will
remedy the alleged injury in fact.” Stevens, 529 U.S. at 771, 120 S.Ct. 1858.

State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004)

8. In his Motion to Dismiss, DeSantis argues that “[n]othing within Plaintiff’s

Amended Complaint suggests that he will suffer any injury—much less a special injury—if

Governor DeSantis declines to impose a statewide mandatory beach-closure order and a statewide

recommended safer-at-home order.” Page 6, Motion to Dismiss. This is simply false.

9. Uhlfelder alleges he is a Florida resident. See ¶3, Amended Complaint. Uhlfelder

alleges that “…there are at least 4,038 cases of COVID-19 in the State of Florida” and that “[a]t

least 56 people have died from COVID-19 in Florida.” ¶11, Amended Complaint. Uhlfelder

alleges that if DeSantis “fails to issue a statewide Beach Closure Order….more Floridians, indeed,

potentially vastly more Floridians…will become sick, spread the disease and die.” ¶34, Amended

Complaint.

10. COVID-19 is continuing to spread in Florida and kill more Floridians. See

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Plaintiff’s Ex. 7.

11. It is difficult to imagine a more actual or imminent injury than the continued spread

of a once-in-a-generation pandemic and the daily-increasing likelihood that Uhlfelder contract that

disease as a result of DeSantis’s failure to act. Surely, DeSantis is not suggesting that Uhlfelder

wait until he becomes infected with COVID-19 in order for the concreteness of his injuries to be

deemed sufficiently cognizable.

12. In ¶29 of his Amended Complaint, Uhlfelder notes the economic fallout which will

befall the State of Florida as a result of DeSantis’s failure to act.

13. The injuries of potentially suffering from a fatal pandemic disease and the

concomitant economic impact therefrom are both actual and imminent.

14. As DeSantis’s inaction pertains to the traceability of Uhlfelder’s injuries, DeSantis

makes the staggering claim that “the absence of beach-closure and safer-at-home executive orders

[emphasis added], in no way exposes Plaintiff to COVID-19 related harms.” Page 6, Motion to

Dismiss.

15. In almost the same breath, DeSantis issued a statewide Safer-at-Home Order in

Executive Order 20-91, citing precisely the same concerns Uhlfelder cited in the Amended Motion

for Emergency Injunctive Relief. See Plaintiff’s Ex. 16.

16. Even DeSantis does not believe that there is no connection between DeSantis’s

actions and COVID-19 related harms.

17. DeSantis stated in Executive Order 20-91 that “it is necessary and appropriate to

take action to ensure that the spread of COVID-19 is slowed, and that residents and visitors in

Florida remain safe and secure.” Plaintiff’s Ex. 16.

18. According to the CDC and DeSantis’s Executive Order 20-70, the “minimization

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of contact is necessary to avoid COVID-19 infection.” See Plaintiff’s Exs. 5 and 11.

19. Obviously, DeSantis issues executive orders calculated to affect the spread of

COVID-19, and in turn, COVID-19 related harms. It is nonsensical then for DeSantis to argue

that the traceability of Uhlfelder’s injury is “in no way” related to DeSantis’s actions. Page 6,

Motion to Dismiss.

20. Moreover, Uhlfelder lives in a beach community well-known for attracting millions

of visitors from out-of-town. Although Walton County, where Uhlfelder is a resident 1, recently

closed its public beaches, thousands of tourists from outside the state nevertheless visited Walton

County. Plaintiff’s Ex. 29.

21. Indeed, this danger of out-of-state visitors was serious enough for DeSantis to issue

an executive order related thereto. See Plaintiff’s Ex. 12 (“…many cases of COVID-19 in Florida

have resulted from individuals coming into the State of Florida from international travel and other

states, posing great risk to Florida residents.”).

22. In Executive Order 20-91, DeSantis stated that interstate travel continues “to pose

a risk to the entire State of Florida.” Plaintiff’s Ex. 16, 25.

23. In Executive Order 20-70, DeSantis stated that Florida’s beaches, are “potential

gathering places for the spread of COVID-19[,]” and mandated the closure of Palm Beach and

Broward County beaches, but refused to close all of Florida’s beaches. See Plaintiff’s Ex. 11, 25.

24. However, DeSantis argues in his Motion to Dismiss that there is no connection

between COVID-19 related harm and his actions.

25. In failing to issue a statewide Beach Closure Order and, until very recently and only

after Uhlfelder’s suit and hundreds of thousands of others pleadings with DeSantis, DeSantis

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DeSantis mistakenly alleges that Uhlfelder lives in Santa Rosa County (see Page 6).

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seeking a Safer-at-Home Order, failing to issue a Safer-at-Home Order, DeSantis is directly

responsible for a more—potentially far more—rapid spread of COVID-19. As a Florida resident,

Uhlfelder has no choice but to experience the effects, for better or worse, of DeSantis’s actions or

inactions.

26. As a resident of a Florida beach community, Uhlfelder’s COVID-19 related injuries

are even more acutely felt.

27. In this way, Uhlfelder’s injuries are easily and directly traceable to DeSantis.

28. Finally, the requested relief is certain to provide a remedy for the harm alleged by

Uhlfelder according to not only the CDC but DeSantis himself.

29. Again, the CDC has made clear that COVID-19 is transmitted through person-to-

person contact and measures such as a mandatory statewide Beach Closure Order and a Safer-at-

Home Order would diminish person-to-person contact. Plaintiff’s Ex. 5.

30. DeSantis’s executive orders cite diminished interpersonal contact as a basis for the

executive orders. See Plaintiff’s Ex. 11.

31. DeSantis’s executive orders which authorize a Safer-at-Home Order and the

Broward County and Palm Beach County beach closures cite diminished interpersonal contact and

the effect of diminished interpersonal contact on the spread of COVID-19 as bases for those orders.

Id.

32. Uhlfelder’s Amended Complaint more than meet the “constitutional minimum”

standing requirements and this Court should therefore deny DeSantis’s Motion to Dismiss.

II. This Court possesses the authority to grant the relief requested.

33. DeSantis’s contention that this Court does not possess the authority to grant the

relief requested in Uhlfelder’s Amended Complaint would be more persuasive if DeSantis had not

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completely abdicated his statutorily and constitutionally mandated duties to protect the health and

welfare of Florida’s citizens or to meet the dangers presented by emergencies.

34. The Florida Constitution states that “[a]ll natural persons…have inalienable rights,

among which are the right to enjoy and defend life and liberty[.] [emphasis added]” Art. 1, §2, Fla.

Const.

35. The State of Florida is obligated to ensure the health and safety of its citizens.

Burnsed v. Seaboard Coastline R. Co., 290 So. 2d 13, 18 (Fla. 1974) (“Police Power is

the sovereign right of the state to enact laws for the protection of lives, health, morals, comfort

and general welfare.”).

36. Indeed, the Florida Supreme Court held in Browning that “[t]he state’s interest in

the preservation of life generally is considered the most significant state interest.” In re

Guardianship of Browning, 568 So. 2d 4, 14 (Fla. 1990); see also Burton v. State, 49 So. 3d 263,

266 (Fla. 1st DCA 2010) (holding that the State’s interest in the preservation of life is

“compelling”).

37. Article IV, §1 of the Florida Constitution states that “[t]he governor shall take care

that the laws be faithfully executed.”

38. As DeSantis himself notes in his Motion to Dismiss, §252.36(1)(a), Fla. Stat. (2019)

states that the “Governor is responsible for meeting the dangers presented to this state and its

people by emergencies.” Page 12, Motion to Dismiss. While Chapter 252 surely contemplates

discretionary executive action, this discretion is predicated on the affirmative obligation created

by the plain language of §252.36(1)(a) that the Governor will meet the dangers presented to the

State of Florida and its people by an emergency.

39. Likewise, the Florida Constitution creates the expectation that Floridians will have

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the right to “enjoy…life[,]” and that the State of Florida is obligated to protect the lives, health and

welfare of its citizens. Art. 1, §2, Fla. Const.

40. The citizens of the State of Florida can expect their government to take basic action

to combat the spread of pandemic disease. DeSantis’s inaction in the face of the spread of this

disease is nothing short of a violation of this statutory and constitutional obligation. In failing to

take the basic precautionary measures outlined in Uhlfelder’s Amended Complaint, DeSantis

violated his statutory and constitutional obligations.

41. DeSantis’s emphasis on the discretionary powers under Chapter 252 is therefore

misguided. DeSantis states in his Motion to Dismiss “[t]o be sure, Plaintiff may believe a variety

of alternative actions are superior to those of the Governor.” Page 10, Motion to Dismiss. Yet,

Uhlfelder’s Amended Complaint does not focus on Uhlfelder’s beliefs at all. Rather, it is focused

on DeSantis’s egregious abdication of his constitutional responsibility to take affirmative steps to

protect the health and safety of Floridians in the face of COVID-19’s spread. See Plaintiff’s Exs.

18-22, 24-27, 31, 33.

42. DeSantis has the discretion to act or abstain, but he does not have the discretion to

violate Florida Statutes or the constitutional rights of Floridians. City of Freeport v. Beach Cmty.

Bank, 108 So. 3d 684, 687 (Fla. 1st DCA 2013) (internal citation omitted) (holding that the

judiciary may not second guess the police power decisions of coordinate branches of government

“absent a violation of constitutional or statutory rights.”).

43. The task before this Court thus fits squarely within the judiciary’s defined roles,

that is: (i) to ascertain whether another branch of government has violated the constitutional rights

of Floridians, and in the event that there is such a violation (ii) to grant the relief requested as

necessary to remedy that violation. See § 20.02, Fla. Stat. (2019) (“[t]he judicial branch has the

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purpose of determining the constitutional propriety of the policies and programs and of

adjudicating any conflicts arising from the interpretation or application of the laws.”).

44. The subsequent remedial measures taken by DeSantis since the filing of Uhlfelder’s

lawsuit and attempts to advance this litigation must also be noted at this critical juncture.

45. For weeks, DeSantis steadfastly refused to issue a statewide Safer-at-Home Order.

See Plaintiff’s Ex. 20 and 31. However, after Uhlfelder filed his Amended Complaint on March

29, 2020, served discovery and noticed DeSantis for deposition and scheduled a hearing with the

Court for the afternoon of April 1, 2020, DeSantis finally issued Executive Order 20-91 on April

1, 2020, issuing a statewide Safer-at-Home Order—one of the remedies requested in Uhlfelder’s

Amended Complaint. Curiously, Executive Order 20-91 was issued merely hours before the Case

Management Conference on the case at bar.

46. DeSantis’s own conduct not only reflects the obvious need for the relief requested

in the Amended Complaint, it evinces a concern that the judiciary will—rightly—act to protect the

constitutional rights of Floridians because the executive has failed to do so. How many more lives

or how many other people have become ill or died because DeSantis has failed to act?

47. On March 30, 2020, Uhlfelder requested a two-hour hearing on his emergency

injunction and the Court scheduled a Case Management Conference for April 1, 2020 at 3:15 EDT.

At that point in time, the lawsuit had been pending for ten days without a hearing and the need for

emergency relief was getting more critical every hour as DeSantis continued to resist the pleas of

Uhlfelder, public health experts and others for days.

48. Even as late as Tuesday evening on March 31, 2020, DeSantis said at a news

conference that he had no plans to issue a statewide stay at home order because the White House

had not told him to do so. https://www.washingtonpost.com/nation/2020/04/01/coronavirus-

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florida-desantis/ For this, he won praise from President Trump. Id.

49. During his March 31, 2020 evening news conference DeSantis reiterated the

ineffectiveness of any such order:

DeSantis again pleaded powerlessness at his news conference and

wondered how useful orders would be anyway. For example, he said
he had closed some beaches at the request of local officials and
people were gathering on them anyway. “I was flying out of Miami
yesterday,” he said, “looking at beaches with signs saying they were
closed. “Were there people out there? Damn right there were,” he
continued. “It’s really up to the locals to deal with them one way or
the other. “ … It’s just unfortunate,” he said, “but no matter what
you do you’re going to have a class of folks who are going to do
whatever the hell they want to.”

He also suggested Floridians didn’t need public health mandates

because most were doing the right thing without them, in part
because there just wasn’t much to do. “Everything’s pretty much
closed,” he said. “It’s not like there’s anything to do."
https://www.washingtonpost.com/nation/2020/04/01/coronavirus-
florida-desantis/

50. Therefore, Uhlfelder served DeSantis with a Notice of Deposition to take place on

April 22, 2020 as it was clear from DeSantis’s nonchalant statements, he had no intention of taking

the necessary actions requested. He had previously served DeSantis with a request for production

that same day.

51. On the morning of March 30, 2020, Uhlfelder requested a two-hour hearing on his

emergency injunction and the Court scheduled a Case Management Conference for April 1, 2020

at 3:15 EDT.

52. Shortly before the April 1, 2020 Case Management Conference DeSantis finally

issued a Safer-At-Home Order and later sought to prevent the taking of his deposition. At that

time, thirty-seven states had already adopted statewide orders for people to stay at home.

53. “The turnabout from Florida’s governor was especially stark. DeSantis had

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previously allowed spring break vacationers to socialize on Florida's beaches, where they likely

spread the virus. Florida, of course, also has one of the nation’s largest populations of people over

65, who are especially threatened by the virus.”

https://www.nytimes.com/2020/04/02/opinion/coronavirus-desantis-trump.html

54. For the foregoing reasons, DeSantis’s Motion to Dismiss should be denied.

III. Uhlfelder’s Amended Complaint satisfies the requirements for injunctive

relief.

55. As DeSantis notes in his Motion to Dismiss, to obtain a preliminary injunction, a

plaintiff must show:

(1) a substantial likelihood of success on the merits, (2) a lack of an adequate

remedy at law, (3) the likelihood of irreparable harm absent the entry of an
injunction, and (4) that injunctive relief will serve the public interest.

Scott v. Trotti, 283 So. 3d 340, 343 (Fla. 1st DCA 2018) (internal citations
omitted).

56. Uhlfelder is likely to succeed on the merits because DeSantis’s actions, as Uhlfelder

has repeatedly noted, run contrary to DeSantis’s obligations to Floridians and his own obligations

as the Governor of the State of Florida. See Amended Complaint; see ¶¶ 31-43 herein.

57. There exists no remedy at law which could provide the relief sought by Uhlfelder

in his Amended Complaint. There is no statutory method for compelling the Governor of the State

of Florida to act to combat the spread of pandemic disease. Uhlfelder and thousands of others

have repeatedly urged and pleaded DeSantis to take the basic actions requested in the Amended

Complaint. See ¶18, Amended Complaint; see Plaintiff’s Exs. 1, 2, 20. The courts are Uhlfelder’s

last recourse to compel DeSantis to act. DeSantis’s own post-litigation conduct confirms the

litigation was required and continues to be required. This is a matter of life and death and DeSantis

has a constitutional obligation to protect Floridian’s lives and deaths and he has failed to do so.

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 58. The risk of irreparable injury as a result of the spread of COVID-19 or death of

Uhlfelder or a member of his family are also great. DeSantis states in his Motion to Dismiss that

“…because Plaintiff has no right or entitlement that he can complain is being deprived by

Governor DeSantis, he cannot establish a likelihood of irreparable harm.” Page 13, Motion to

Dismiss. Again, the heightened risk of death or serious bodily injury as a direct result of

DeSantis’s continued failure to take basic action to combat the spread of COVID-19 is a cognizable

injury which Uhlfelder seeks redress from in his Amended Complaint. Furthermore, DeSantis’s

own executive orders once again belie the basic premises in his Motion to Dismiss: one minute,

DeSantis argues that Uhlfelder cannot establish the risk of irreparable injury as a result of

DeSantis’s failure to act, the next, DeSantis issues executive orders calculated to reduce the spread

of COVID-19, including by issuing orders which contain provisions that are the same or similar

as the relief requested in Uhlfelder’s Amended Complaint. See Plaintiff’s Exs. 11 and 16.

59. Finally, as Uhlfelder has noted repeatedly in this Opposition to the Plaintiff’s

Motion to Dismiss and in his Amended Complaint, as the CDC and other relevant authorities have

stated and as DeSantis himself has noted in in his executive orders, it is in the public interest that

the relief requested in the Amended Complaint be granted. See Amended Complaint; Plaintiff’s

Ex. 11 (Executive Order 20-70 stating that beaches are “potential gathering places for the spread

of COVID-19[,]” and “the minimization of contact is necessary to avoid COVID-19 infection.”);

Plaintiff’s Ex. 16 (In Executive Order 20-91, DeSantis issued a statewide Safer-at-Home Order.).

Conclusion

60. DeSantis’s failure to act is a flagrant violation of his basic obligations to keep

Floridians safe, including Uhlfelder. In his Amended Complaint, Uhlfelder seeks remedies that

will decrease the spread of COVID-19—and consequently—Uhlfelder’s risk of contraction of it.

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Considering DeSantis’s intransigence with regard to the life and health of Floridians, Uhlfelder

requests this Court to exercise its authority in protecting the constitutional rights of Floridians by

denying DeSantis’s Motion to Dismiss and granting the relief requested in Uhlfelder’s Amended

Complaint.

Respectfully submitted this 6th day of April, 2020.

/s/ Daniel W. Uhlfelder

DANIEL W. UHLFELDER, ESQ.
FL Bar No. 0133922
daniel@dwulaw.com (primary)
paralegal@dwulaw.com (secondary)
reception@dwulaw.com (secondary)
DANIEL W. UHLFELDER, P.A.
124 East County Highway 30-A
Santa Rosa Beach, FL 32459
T: (850) 534-0246
F: (850) 534-0985

/s/ Gautier Kitchen

Gautier Kitchen, Esquire
Florida Bar No.: 0689793
THE KITCHEN LAW FIRM
103 N. Meridian Street
Tallahassee, Florida 32301
Telephone: (850) 329-6715
gautier@kitchen-law.com
josh@kitchen-law.com

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via the
Florida Courts E-filing Portal to and served via Florida e-Filing Portal to: Nicholas A. Primrose,
Deputy General Counsel, Executive Office of the Governor, The Capitol, PL-05, Tallahassee,
Florida 32399-0001 [Primary e-mail: Nicholas.Primrose@eog.myflorida.com; Secondary e-
mail address: Erin.Kraeft@eog.myflorida.com] on this 6th day of April, 2020.

/s/ Daniel W. Uhlfelder

DANIEL W. UHLFELDER, ESQ.

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