civil-law new-york-state health covid-19 executive
Does the New York State Governor have the authority to impose fines?
<p>The New York State Governor has <a href="https://coronavirus.health.ny.gov/home" rel="noreferrer">allegedly</a> declared a "fine for violations of the state's social distancing protocol from $500 to $1,000...."</p>

<p>The government website claiming that declaration references a March 20 executive order ("<a href="https://www.governor.ny.gov/news/governor-cuomo-issues-guidance-essential-services-under-new-york-state-pause-executive-order" rel="noreferrer">New York State on PAUSE</a>"), but that executive order does not stipulate fines.</p>

<p>Does the state executive in fact have the authority to impose a fine without legislation?</p>

<p>If so, how can it be prosecuted?</p>

<p>(I struggle to imagine how a government prosecutor would successfully press a fine against a person or business that would withstand any judicial scrutiny given that the closest thing I can even find to "social distancing protocols" is this statement in the executive order:  "Businesses and entities that provide other essential services must implement rules that help facilitate social distancing of at least six feet.")</p>

<p><a href="https://codes.findlaw.com/ny/public-health-law/pbh-sect-12.html" rel="noreferrer">Public Health Law PBH §12(1)</a> says</p>

<blockquote>
  <p>Any person who violates, disobeys or disregards any term or provision
  of this chapter or of any lawful notice, order or regulation pursuant
  thereto for which a civil penalty is not otherwise expressly
  prescribed by law, shall be liable to the people of the state for a
  civil penalty of not to exceed two thousand dollars for every such
  violation.</p>
</blockquote>

<p>I presume that there is a legal path leading to the Public Health chapter of NY laws that connects the gubernatorial order to Public Health Law.</p>

<p><a href="https://www.nysenate.gov/legislation/laws/EXC/29-A" rel="noreferrer">Section 29-A of Article 2-B of the Executive section of the New York Consolidated Laws</a>:</p>
<blockquote>
<p>...The governor, by executive order, may issue any directive during a state disaster emergency declared in the following instances: ... epidemic, disease outbreak ... Any such directive must be necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive.</p>
</blockquote>
<p>So, he's clearly got the authority to unilaterally issue directives in the event of an epidemic or disease outbreak, and provide mechanisms for enforcing those directives.</p>
<p>The relevant declaration of emergency is <a href="https://www.governor.ny.gov/news/no-202-declaring-disaster-emergency-state-new-york" rel="noreferrer">Executive Order 202</a>.  It doesn't contain any directives, just suspensions of certain laws.  The fine comes from <a href="https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency" rel="noreferrer">Executive Order 202.14</a>, which modifies prior orders:</p>
<blockquote>
<p>The enforcement of any violation of the foregoing directives <em>[closure of businesses and prohibition on gatherings]</em> on and after April 7, 2020, in addition to any other enforcement mechanism stated in any prior executive orders, shall be a violation punishable as a violation of public health law section 12-b(2) and the Commissioner of Health is directed and authorized to issue emergency regulations. The fine for such violation by an individual who is participating in any gathering which violates the terms of the orders or is failing to abide by social distancing restrictions in effect in any place which is not their home shall not exceed $1,000.</p>
</blockquote>
<p>The prohibition on gatherings (the &quot;social distancing&quot; order) comes from <a href="https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency" rel="noreferrer">Executive Order 202.10</a>, which does not provide any penalty.  The first penalty comes from <a href="https://www.governor.ny.gov/news/no-20211-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency" rel="noreferrer">Executive Order 202.11</a>, which permits closing buildings in which gatherings take place as if they had exceeded the legal occupancy limits.  Executive Order 202.14 is the first one to put monetary fines on gatherings.</p>
<p>The first executive order that provides a penalty for violating the business-closure orders is <a href="https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency" rel="noreferrer">202.8</a>:</p>
<blockquote>
<p>The provisions of Executive Order 202.6 <em>[reduction of in-person workforce to 50%]</em> are hereby modified to read as follows: Effective on March 22 at 8 p.m. ... Any business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law.</p>
</blockquote>
<p><a href="https://www.nysenate.gov/legislation/laws/PBH/12" rel="noreferrer">Section 12 of the Public Health Law</a>:</p>
<blockquote>
<p>1. (a) Any person who violates, disobeys or disregards any term or provision of this chapter or of any lawful notice, order or regulation pursuant thereto for which a civil penalty is not otherwise expressly prescribed by law, shall be liable to the people of the state for a civil penalty of not to exceed two thousand dollars for every such violation.</p>
<p>(b) The penalty provided for in paragraph (a) of this subdivision may be increased to an amount not to exceed five thousand dollars for a subsequent violation...</p>
</blockquote>
<p>So in summary, the &quot;raised the fine&quot; statement is wrong.  Prior to April 7, as far as I can tell, there was no monetary penalty for individuals violating the order.  For businesses violating the closure and work-at-home orders, the fine is unchanged, at a maximum of $2000 for the first violation and $5000 for subsequent violations.</p>
<hr />
<p>Only tangentially related, but an emergency declaration isn't an unrestricted grant of power.  Section 29-A provides the following limitations:</p>
<blockquote>
<p>b. no suspension or directive shall be made which is not in the interest of the health or welfare of the public and which is not reasonably necessary to aid the disaster effort;</p>
<p>e. any such suspension order or directive shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the goals of the disaster action deemed necessary;</p>
<p>4. The legislature may terminate by concurrent resolution executive orders issued under this section at any time.</p>
</blockquote>
<p>Any directive or suspension can be overridden by the courts if it goes beyond what is necessary, and can be overridden by the legislature for any reason.</p>

<p>It seems that the statement slightly preceded the signing of the order. Executive order <a href="https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency" rel="nofollow noreferrer">202.14</a>  (issued April 7th 2020)  says:</p>

<blockquote>
  <p>The enforcement of any violation of the foregoing directives on and
  after April 7, 2020, in addition to any other enforcement mechanism
  stated in any prior executive orders, shall be a violation punishable
  as a violation of public health law section 12-b(2) and the
  Commissioner of Health is directed and authorized to issue emergency
  regulations. The fine for such violation by an individual who is
  participating in any gathering which violates the terms of the orders
  or is failing to abide by social distancing restrictions in effect in
  any place which is not their home <strong>shall not exceed $1,000</strong>.</p>
</blockquote>
