Can the State Public Health Officer give me “orders”?

On March 19, 2020, the State Public Health Officer issued an order that “all individuals living in the State of California to stay home . . .” (link) Can she give me an order? What is the penalty if I don’t follow it?

My name is Jared Clemence, and I am a full-time Real Estate agent. I am also a second-year law student, so these kinds of questions really tickle my brain. Today I will be looking into the power of the Public Health Officer and seeing if she really can force me to stay home.

Disclaimer: I am not a lawyer, and this is not legal advice. These are the ramblings of a second-year law student. If you need legal advice, please seek out the advice of a licensed professional.

The Order

Within the order, Sonia Y. Angell, M.D., M.P.H., cites a list of government codes that give her authority to issue the order. She writes: “Pursuant to the authority under the Health and Safety Code 120125, 120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, this order is to go into effect immediately . . .”

But do any of these codes actually give her authority over me as a citizen of the State of California?

Let’s find out.

A review of the law.

Section 120125 gives the State Department of Public Health a mandate that they must examine the causes of communicable disease.

Section 120140 gives it the power to “take possession or control of the body of any living person. . .” This power is specifically named as one of the methods that the department may take which “are necessary to ascertain the nature of the disease and prevent its spread.”

Section 131080 gives the department power to “control and regulate [the] action [of local health authorities.]”

Under section 120130(c), “[t]he department may from time to time adopt and enforce regulations requiring strict or modified isolation, or quarantine.”

Section 120135 gives the department power to select the location of quarantine. In this case, the department is selecting the location of “your own home” as the location.

Where 120130(c) gives the department power to enforce or adopt regulations, section 120145 gives the power to actually “quarantine, isolate, inspect, and disinfect” any “persons, animals, houses, rooms, other property, places, cities, or localities.”

Section 120175 mandates that each health officer take measures necessary to prevent the spread of disease.

Section 120150 gives the department power to destroy property “such [] as bedding, carpets, household goods, furnishings, materials, clothing, or animals . . .”

What is the penalty if we disobey?

Above, we see that the California Health and Safety Code gives the State Department of Public Health power to control living bodies and to institute quarantines in places of their choosing, but what happens if a citizen does not comply with an order? What’s the penalty?

“Any person who, after notice, violates, or who, upon the demand of any health officer, refuses or neglects to conform to, any rule, order, or regulation prescribed by the department respecting a quarantine or disinfection of persons, animals, things, or places, is guilty of a misdemeanor.” (Health & Safety Code, § 120275.)

Every person in California is officially on “notice” of the order, because Governor Newsom ordered all Californian’s to heed the order, and he reprinted the order in his document. This means that any person violating Dr. Angell’s order is guilty of a misdemeanor without any additional warnings.

The separate offenses rule does not apply.

“Any person who violates Section 120130 or any section in Chapter 3 (commencing with Section 120175, but excluding Section 120195), is guilty of a misdemeanor, punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000), or by imprisonment for a term of not more than 90 days, or by both. He or she is guilty of a separate offense for each day that the violation continued.” (Health & Saf. Code, § 120295.)

Section 120295, specifically names a code listed in the public order: 120175, but this is the only section of the code that applies to the order. This rule, which creates a new offense for every day of violation deals with Chapter 3 violations, which cover the duties of local health officers. This means that as a general citizen, you are guilty of a misdemeanor, but you do not accrue a new offense for every day that you violate the order.

In my opinion…

Based on the above, it appears that the Public Health Department does have the power to order me to stay home, but the punishment is a misdemeanor. I see no code that imposes a fine or jail time. However, the court may confine me (presumably to a jail) until the order is carried out.

Is it worth the risk to carry on business as a Real Estate agent given the above? Maybe.

I think that it is best to limit exterior interactions. Take phone calls instead of in person meetings and limit the number of home-visits. There is no need to be brazen about the violating the order of the Public Health Department. However, from time to time, in the effort of keeping the economy moving forward, getting homes sold, and reducing interactions between buyers and sellers, it may be justifiable to risk a misdemeanor in order to create a 3D tour.

To promote the public welfare, one should practice extreme caution when visiting another person’s house. Wear a mask. Wear latex gloves, and keep a distance of six feet from strangers. Sanitize hard surfaces when possible, and make contact with as few walls, door knobs and physical structures as possible.