Florists can reopen May 1; relief after Gov. Ige rescinded Mother’s Day exemption

Coronavirus

HONOLULU (KHON2) — Florists statewide will be allowed to deliver flowers in plenty of time for Mother’s Day. Gov. David Ige has given permission for florists to get back to business May 1, this after the governor himself revoked just two days ago a special exemption florists got for a 10-day window around Mother’s Day.

The change of heart comes after a flurry of pleas from the public and business, detailed questioning from Always Investigating, and support from all four mayors for letting flowers get to moms.

Mother’s Day is to flowers what the World Series is to baseball. This is a holiday that generates nearly $2 billion in consumer spending nationwide. Mother’s Day accounts for about a quarter of what florists make all year, but with COVID-19, this Mother’s Day was already shaping up to be no ordinary holiday.

“If there’s an industry out there that can do contactless delivery and be safe and bring happiness to moms, let them do it,” said Monty Pereira, general manager of Watanabe Floral.

But florists in Hawaii aren’t on the state’s Essential Services list the governor put out in March along with the stay-at-home order, so right away the industry started seeking a temporary exemption just for Mother’s Day deliveries.

“We realize no one flower shop can service all the moms in Hawaii, so it was something we sought out for everybody,” Pereira said.

They started with the governor’s office, which responded April 9 instructing Watanabe Floral to submit its request through the email address covidexemption@hawaii.gov. That’s the same email address the governor’s office instructed the public to use in a March 23 press conference and press release.

An e-mail response from covidexemption@hawaii.gov let Watanabe Floral industry know April 18 that it was still under review, and there was still no word by middle of last week.

“It was the deadline sent to us by our floral farms around the world,” Pereira explained, “that our orders had to be in by last week Wednesday-Thursday.”

Then in the nick of time, the exemption was granted, via an email from covidexemption@hawaii.gov listing several do-able safety precautions.

“When the exemption came in, all the florists here put in our orders with farms around the world,” Pereira said. “When all of our orders went in, we all had to pay up front, so depending on the size of the florist you’re talking about a couple thousand dollars to more than $20,000 in product that we committed to for Mother’s Day.”

The orders blossomed immediately

“Once it actually hit out there, within 48 hours we had 500 orders already in our system,” Pereira said, “so it was staggering the response how quickly it came in.”

And then Gov. David Ige said this Saturday at a midday press conference: “That permission was granted prematurely, and so I was not aware it was actually granted. That person authorizing it did not have the authority.”

The exemption had been rescinded.

“I was like, wait is this real? This can’t possibly be real,” Pereira said. “I don’t understand, is there some compromise we can reach at this point? Understand that all the financial commitments have been made from all the florists.”

Always Investigating asked for an explanation of who did what and when in the state exemption snafu. The governor’s spokesperson said: “There were multiple people from several offices involved in the decision, which was released before any policy decisions were made about the broader context of a phased reopening of the state’s economy.”

The governor himself added: “I’m currently working with the county mayors to identify operational guidelines to allow not just florists but other businesses to serve their customers. We hope this can be done in phases and businesses can begin to reopen in ways that don’t significantly increase the number of COVID-19 cases here in Hawaii.”

A legal expert told Always Investigating the state could be liable either way for the florists’ expenses because they were given a legitimate exemption, however brief.

“He’s now saying that person didn’t check with me first and didn’t have the authority to make those kinds of exemptions,” explained attorney Robert Thomas, with the Hawaii firm Damon Key Leong Kupchak Hastert. “That’s not on you, that’s on them. It goes by the name of ‘apparent authority’ or ‘acting within the ambit of their authority.’”

After the governor told Always Investigating on Monday afternoon he’d be working with the mayors, we checked directly with all four counties. The mayors of Kauai and Honolulu told us floral delivery and pickup should be allowed if done safely. Maui’s mayor says his county order already allowed flower delivery through April and called on the governor to quickly restore the floral exemption statewide. Hawaii County’s mayor told us the governor said Monday he will restore the exemption.

And then, this update from the governor’s office just before this story went to air on KHON2: “I just wanted to announce tonight that I’ve discussed this with the mayors and we all believe that florists certainly is one of the businesses where the risk is low,” the governor said on a Facebook Live broadcast.

Pereira tells us the governor’s office called him late Monday to come join the governor on the Facebook broadcast. Pereira said during the live event: “I want to express my sincere gratitude on behalf of all the flower shops in Hawaii for the opportunity now to be able to service mom on Mother’s Day.”

“Florists will be in the first phase of reopening,” Ige said. “They will be amongst the first businesses that will be allowed to reopen May 1 provided they implement these procedures that would assure the safety of all.”

Thomas says the florists had strong standing to defend their exemption had permission not been restored, especially since from start to finish all communications went through the very system the governor himself instructed the public — and the florists — to use for covid exemption requests.

“It’s not, you know, ‘call us and we’ll see if you get an exemption.’ It’s ‘here’s where to contact us and in certain circumstances we’ll issue exemptions.’ That’s exactly what they did. So, to me, it sounds like a strong case,” Thomas said. “The courts have for a long time enforced the right under either something called an estoppel theory if you prefer Latin, or implied contract theory.”

The florists aren’t alone in seeking exemptions to the stay home order. More than 5,900 requests have been made to the covidexemption@hawaii.gov email — nearly 400 just in the past day alone. The state Department of Defense, governor’s office and Attorney General’s office work in tandem to respond, and we’ve learned they’ve answered 5,311. The florists were the only business sector granted a blanket exemption prior to the governor’s Saturday revocation.

“It doesn’t help to build confidence to say well ‘that wasn’t me so you shouldn’t rely on anything else somebody says about the situation unless you hear it from me,” Thomas said. “It begs the question, well why not?”

“Maybe the smartest thing to do for the governor is figure out why it happened, figure out if it was really necessary to revoke the exemption that was issued supposedly in error, and is there some science behind what is it about florists that makes it so unreasonably risky to the public health to have florists,” Thomas said, prior to the Monday evening permission being granted again.

If the exemption had not been restored in time for Mother’s Day, we all as taxpayers may have ended up paying for a whole lot of flowers anyway — without the joy of smelling the roses.

“There’s a statute that allows the government to be sued when it makes those kinds of statements, and people rely on those statements and incur expenses and other things that they can’t get back,” Thomas said. “The courts will hold government agencies including the office of the governor to task for these things. If the governor says no or if there’s some truly public health reason why delivery of flowers is really much more risky to the public health than food delivery, we are looking at a case only where after the fact you try to help these folks get their money back.”

In many other states harder hit by COVID-19, flower shops or deliveries have been allowed to stay in operation.

“There are actual health benefits that are out there that show the mental benefit of having flowers in the home,” Pereira said. “They change mood, they create happiness, they bring joy. And right now probably more than ever before in our lifetimes universally I think we can use a little more of that. The whole premise of this is let’s try to bring some happiness for that one week.”

Responses from all county mayors to Always Investigating’s inquiry: Does your county’s mayor support restoration of the State’s prior exemption for florists for Mother’s Day?

MAUI MAYOR MIKE VICTORINO: “Floral deliveries and wholesale flowers are allowed in Maui County under our current Public Health Emergency Rules….It is especially important that we allow this service during these unprecedented and uncertain times. Continuing traditions like buying flowers for our mothers helps us convey appreciation and celebrate at a time when we cannot gather together. I would like to formally ask that (the governor) grant our request to continue floral deliveries and wholesale of flowers in Maui County.”

HONOLULU MAYOR KIRK CALDWELL: “The City was not involved in the discussions between the florists and the State and was not asked to weigh in on the merits of the proposed exemption. We believe, with sufficient protective measures in place, flower shops should be able to operate on an online only or pick-up and delivery basis, similar to food takeout, or our farm to car program.”

KAUAI MAYOR DEREK KAWAKAMI: “I believe that florists can operate with certain measures in place to ensure the safety of both employees and customers. Further, as we move toward our next phase of economic recovery, our challenge will be getting as many people back to work as possible, while maintaining our low case numbers. This will require us to evolve from the mindset of ‘essential vs. non-essential’ businesses – as all businesses are essential to our economy – and instead move toward a phased reopening of businesses based on an assessment of risk. If a business can operate with a low risk of transmitting COVID-19, then we should start to plan for their reopening in a safe manner. Our tourism industry would be a more high risk operation, and therefore I believe our tourism industry would be at the tail-end of our economic recovery plan.”

BIG ISLAND MAYOR HARRY KIM: “I spoke to the governor this afternoon and he said that after getting concurrence from all county mayors he will be allowing the exemption for florists to proceed.”

In the course of digging into how this all happened and the ramifications for the state, businesses and buyers, we compiled an extensive amount of detail about the legal standing florists had to get relief for any money lost had the exemption remained rescinded. Here are those details per Thomas:

“Generally people are entitled to rely on the government’s ‘official assurances’ about certain of the government’s own processes, and if that reliance is what could be considered “substantial,” then the government might be liable in a couple of ways.

First, the person who relied might be able to stop the government from back-tracking on its implied promise.

Second, the government might be liable for monetary damages.

Thus, you may not have an actual contract or agreement with the government that can be enforced, but if it seems unfair (based on the facts of the case) for the government to renege on something it told you after you reasonably and substantially changed your position based on those assurances, then the age-old equitable principle allows a court to fashion a remedy that will mitigate the unfairness. The classic example is that a government official tells someone ‘cross the street and when you come back and the government will do X;’ but then when the person goes to the other side of the road but before they return, the government says ‘sorry, we changed our mind,’ a court will find this unfair.

This goes by several names: ‘quasi-contract,’ ‘promissory estoppel,’ and ‘implied contract,’ and ‘vested rights.’

Hawaii law contains an express waiver of ‘sovereign immunity’ (generally, you can’t sue the State of Hawaii unless it ‘lets’ you), where it allows these kind of claims (HRS 661-1). That statute gives the circuit courts jurisdiction to consider lawsuits (no jury, sorry) for: ‘[a]ll claims against the State founded upon any statute of the State; upon any rule of an executive department; or upon any contract, expressed or implied, with the State.’ That waiver is limited by this language: no lawsuits unless the ‘state officer’ is ‘authorized to make or do’ the thing he or she said to do.

So to me, the key points to look for are these:

1. Who is covidexemption@hawaii.gov?

2. Was this person/office/agency acting ‘within the ambit of their authority’ (as one famous Hawaii Supreme Court put it) when they invited people to seek exemptions from the ‘nonessential’ category, and induced them to rely? In other words, would it appear to a neutral observer that they possessed the legal authority to invite and issue exemptions? It sure looks like this is an official statement and invitation, promulgated by someone with the authority to do so. But we don’t know, exactly. To me, that is an important fact to learn.

3. How reasonable was it for a florist, once they received assurances that they were entitled to a ‘limited exemption’ if they complied with the three conditions, for the florist to spend money in reliance that yes, they would qualify? Here, the circumstances sure do make it seem like a florist would be reasonable if it reacted to the limited exemption by going out and doing things to prepare for Mother’s Day.

4. How much did a particular florist expend? The ‘quasi-contract’ doctrine requires ‘substantial’ expenditures in reliance on official assurances. To qualify as ‘substantial,’ it doesn’t have to be a whole lot dollar-wise. But more than just ‘manini’ (as we say). The more you do and change your position, the better the case would be.

5. Did a florist have any reason to understand that the State/Governor might rescind the exemption? I don’t see any, but we might not know all of the facts yet. If so, maybe reliance wasn’t reasonable. You can’t ‘jump the gun’ if the circumstances should have told you that this was, say, only a preliminary exemption.

6. What remedy would a florist be looking for? As I noted above, one of the usual remedies for this is an injunction to require the government to actually do what it promised. But here, the Governor might say that he changed his mind due to the threat to the public health. So I think a key fact is what reason is being given for rescinding the exemption? A court isn’t likely to require the State to allow something that is alleged to endanger the public health, even if people have reasonably relied on an exemption. Thus, the remedy that a court would likely be looking at is money damages. I.e., put the florist back in the position she or he would have been had the government not unfairly induced the florist to go spend money.

7. This would likely turn on why the government rescinded its limited exemptions. Was issuing the exemptions a mistake (a mistake, standing alone, may not get the State out of an implied contract claim)? Did something change the Governor’s mind?”

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