For the second time in three weeks, the Governor has declared a “state of emergency” due to winter storms. The second, related to prediction of an impending major ice storm, looks more significant than the first. If predictions of power outages are accurate, you may have to read this on your phone or iPad that you charged up beforehand.
Georgia law defines a “state of emergency” as a “condition declared by the Governor when, in his judgment, the threat or actual occurrence of a disaster, emergency, or energy emergency in any part of the state is of sufficient severity and magnitude to warrant extraordinary assistance by the state to supplement the efforts and available resources of the several localities and relief organizations in preventing or alleviating the damage, loss, hardship, or suffering threatened or caused thereby.” O.C.G.A. § 38-3-3(7).
That sounds very impressive, but exactly what does it mean?
– Governor’s emergency powers. Georgia law (O.C.G.A. § 38-3-51) defines broad emergency powers for the Governor as follows:
(a) In the event of actual or impending emergency or disaster of natural or human origin . . . the Governor may declare that a state of emergency or disaster exists. . . . The state of emergency or disaster shall continue until the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with, to the extent that emergency or disaster conditions no longer exist, and terminates the state of emergency or disaster. No state of emergency or disaster may continue for longer than 30 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of emergency or disaster at any time. Thereupon, the Governor shall by appropriate action end the state of emergency or disaster.
(b) A declaration of a state of emergency or disaster shall activate the emergency and disaster response and recovery aspects of the state and local emergency or disaster plans applicable to the political subdivision or area in question and shall be authority for the deployment and use of any forces to which the plan or plans apply and for use or distribution of any supplies, equipment, and materials and facilities assembled, stockpiled, or arranged to be made available pursuant to Articles 1 through 3 of this chapter or any other law relating to emergencies or disasters.
(c) The Governor shall have and may exercise for such period as the state of emergency or disaster exists or continues the following additional emergency powers:
(1) To enforce all laws, rules, and regulations relating to emergency management and to assume direct operational control of all civil forces and helpers in the state;
(2) To seize, take for temporary use, or condemn property for the protection of the public in accordance with condemnation proceedings as provided by law;
(3) To sell, lend, give, or distribute all or any such property among the inhabitants of the state and to account to the proper agency for any funds received for the property; and
(4) To perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population.
(d) In addition to any other emergency powers conferred upon the Governor by law, he may:
(1) Suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;
(2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the emergency or disaster;
(3) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services;
(4) Commandeer or utilize any private property if he finds this necessary to cope with the emergency or disaster;
(4.1) Compel a health care facility to provide services or the use of its facility if such services or use are reasonable and necessary for emergency response. The use of such health care facility may include transferring the management and supervision of the health care facility to the Department of Public Health for a limited or unlimited period of time not extending beyond the termination of the public health emergency;
(5) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;
(6) Prescribe routes, modes of transportation, and destinations in connection with evacuation;
(7) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
(8) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles; provided, however, that any limitation on firearms under this Code section shall not include an individual firearm owned by a private citizen which was legal and owned by that citizen prior to the declaration of state of emergency or disaster or thereafter acquired in compliance with all applicable laws of this state and the United States; and
(9) Make provision for the availability and use of temporary emergency housing.
(e) When the available funds are not sufficient for the purpose of paying the expenses incident to carrying out the provisions authorized by Articles 1 through 3 of this chapter, the Governor may transfer from any available fund in the state treasury such sum as may be necessary to meet the emergency or disaster; and the moneys so transferred shall be repaid to the fund from which transferred when moneys become available for that purpose by legislative appropriation or otherwise.
(f) In the event that the Governor proclaims an emergency or disaster, as defined by Articles 1 through 3 of this chapter, to be a catastrophe within the meaning of Article III, Section IX, Paragraph VI(b) of the Constitution of the state, the funds referred to in the paragraph may be utilized by the Governor for the purpose of carrying out the provisions authorized by Articles 1 through 3 of this chapter.
(g) In the event that the Governor proclaims an emergency or disaster, as defined in Articles 1 through 3 of this chapter, the Governor may provide welfare benefits to the citizens of this state in the form of grants to meet disaster related necessary expenses or serious needs of individuals or families adversely affected by an emergency or disaster in those cases where the individuals or families are unable to meet the expenses or needs from other means, provided that such grants are authorized only when matching federal funds are available for such purposes pursuant to the Disaster Relief Act of 1974 [FN1] (Pub. L. 93-288).
(h) [Energy emergency provision, omitted from this blog post.]
(i)[Public health and pandemic emergency provisions omitted from this blog post.]
(j) Any individual, partnership, association, or corporation who acts in accordance with an order, rule, or regulation entered by the Governor pursuant to the authority granted by this Code section will not be held liable to any other individual, partnership, association, or corporation by reason thereof in any action seeking legal or equitable relief.
– Unified emergency command system. The Georgia Emergency Management Agency, in coordination with other state agencies, can operate a unified incident command system where there is a declared state of emergency. O.C.G.A. § 38-3-57.
– Activation of state militia. The Georgia State Defense Force – a volunteer force distinct from both the National Guard and any private militia organizations – is a volunteer organization that provides an organized, trained, disciplined, rapid response uniformed force. Volunteers respond to needs and emergency situations as defined by the Adjutant General or the Governor. O.C.G.A. § 38-2-6 (c) provides, “When the Governor orders into the active service of the state all or any portion of the organized militia as provided in this Code section, he shall declare a state of emergency in such locality and it shall be the duty of the Governor to confirm such declaration and order in writing which shall state the area into which the force of the organized militia has been ordered.”
In a major weather emergency, the Georgia State Defense Force joins the National Guard, DOT, law enforcement and other agencies in responding to the situation.
– The Emergency Management Assistance Compact provides a system for cooperation between participating states in emergencies. O.C.G.A. § 38-3-81.
– Removal of road obstructions. “State or local law enforcement officers, including fire department officials, and the department are authorized, upon the issuance of an executive order by the Governor declaring a state of emergency, with or without the consent of the owner, to remove or have removed any natural or manmade obstruction, cargo, or other personal property which is abandoned, unattended, or damaged and the law enforcement officer or the department determines such object to be a threat to public health or safety or to be contributing to traffic congestion. Any person, contractor, towing service, or other entity that is removing an obstruction, cargo, or other personal property pursuant to the instruction of a law enforcement officer, an official of a fire department acting under the authority of paragraph (1) of Code Section 25-3-1 or paragraph (3) of Code Section 25-3-2, or the department, and under the provisions of this Code section, shall be liable for damage or harm at the location where the obstruction, cargo, or other personal property was left abandoned or unattended, only when the person, contractor, towing service, or other entity was grossly negligent in the performance of his or her assigned duties; provided, however, nothing in this Code section shall limit liability for any damage or harm caused at a location different from the location where the obstruction, cargo, or other personal property was left abandoned or unattended.” O.C.G.A. § 32-6-4.
– Immunity from liability of persons acting to prevent, minimize, and repair injury and damage resulting from catastrophic acts of nature.
O.C.G.A. § 51-1-29.2 provides as limited scope of civil immunity as follows:
“Any natural person and any association, fraternal organization, private for profit entity, not for profit entity, religious organization, or charitable organization and the officers, directors, employees, and agents of such associations, organizations, and entities, when such persons, associations, organizations, or entities are working in coordination and under the direction of an appropriate state agency, who voluntarily and without the expectation or receipt of compensation provides services or goods in preparation for, anticipation of, or during a time of emergency and in a place of emergency as declared by the Governor for the benefit of any natural person or his or her property to prevent or minimize harm to such natural person or to prevent, minimize, and repair injury and damage to such person’s property resulting from biological, chemical, or nuclear agents; terrorism; pandemics or epidemics of infectious disease; or catastrophic acts of nature, including, but not limited to, fire, flood, earthquake, wind, storm, or wave action, or any other occurrence which warrants the declaration of a state of emergency or disaster by the Governor pursuant to Code Section 38-3-51 or by a federal agency shall not be civilly liable to any natural person receiving such assistance as a result of any act or omission in rendering such service if such natural person, association, organization, or entity was acting in good faith and unless the damage or injury was caused by the willful or wanton negligence or misconduct of such natural person, association, organization, or entity. Nothing in this Code section shall be construed to amend, repeal, alter, or affect in any manner any other provision of law granting immunity or limiting liability. Nothing in this Code section shall be construed to abrogate the sovereign immunity of this state as to all actions executed by any party under this Code section.”
I have heard reports of one major auto insurance company directing adjusters to automatically deny all claims arising in the recent ice storm. If true, such denials would be based on a serious misinterpretation of the law. The insurance company’s actions would be in bad faith and potentially subject to awards of bad faith penalties and attorney fees except as to claims against anyone acting (a) without compensation at direction of an appropriate state agency, (b) in accordance with an emergency order, rule, or regulation entered by the Governor, or (c ) contractors and towing companies removing vehicles at the direction of law enforcement or fire departments.
The state of emergency does not protect from liability a trucking company or other motorist that continues to operate on icy roads without being directed by the Governor’s orders or at direction of emergency personnel.
– Nonresident insurance adjusters. “No license by this state shall be required: (1) Of a nonresident independent adjuster for the adjustment in this state of a single loss or of losses arising out of a catastrophe common to all such losses; or (2) Of a nonresident adjuster who regularly adjusts in another state and who is licensed in such other state, if such state requires a license, to act as adjuster in this state for emergency insurance adjustment work for a period not exceeding 60 days and performed for an employer who is an insurance adjuster licensed by this state or who is a regular employer of one or more insurance adjusters licensed by this state, provided that the employer shall furnish to the Commissioner a notice in writing immediately upon the beginning of the emergency insurance adjustment work. The Commissioner may by rule or regulation establish criteria and procedures for adjusters operating under this Code section.” O.C.G.A. § 33-23-29 (b).
– Court deadlines. In a state of emergency, the Chief Justice of the Georgia Supreme Court or the chief judge of a judicial circuit may declare a “judicial emergency” when “the emergency substantially endangers or infringes upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system, or the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by court order or rule, statute, or administrative rule or regulation.” Such a “judicial emergency” order may extend time deadlines including:
(1) A statute of limitation;
(2) The time within which to issue a warrant;
(3) The time within which to try a case for which a demand for speedy trial has been filed;
(4) The time within which to hold a commitment hearing;
(5) A deadline or other schedule regarding the detention of a juvenile;
(6) The time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury;
(7) The time within which to file a writ of habeas corpus;
(8) The time within which discovery or any aspect thereof is to be completed;
(9) The time within which to serve a party;
(10) The time within which to appeal or to seek the right to appeal any order, ruling, or other determination; and
(11) Such other legal proceedings as determined to be necessary by the authorized judicial official. O.C.G.A. §§ 38-3-60 to 38-3-64.
– Nonresident physician assistants. In a state of emergency, a physician assistant licensed in another jurisdiction may “may render such care that the physician assistant is able to provide with such supervision as is available at the immediate scene or at the local site where such need for medical care exists or at a relief site established as part of a state or local safety plan….” O.C.G.A § 43-34-103.
– Nonresident professional counselors. State licensing requirements for professional counseling, social work, or marriage and family therapy may be suspended in an emergency. “Persons currently licensed to practice a specialty in another jurisdiction and who are practicing such specialty within a defined disaster area in order to alleviate the impact on persons affected by a disaster . . . or a state of emergency . . . , but only when such specialty services are provided without cost to the recipients, and only for a maximum of 30 consecutive days following a disaster or a state of emergency.” O.C.G.A § 43-10A-7.
– Price gouging. The Georgia Fair Business Practice Act, prohibits anyone doing business in any area in which a state of emergency has been declared, for so long as such state of emergency exists, to sell or offer for sale at retail any goods or services identified by the Governor in the declaration of the state of emergency necessary to preserve, protect, or sustain the life, health, or safety of persons or their property at a price higher than the price at which such goods were sold or offered for sale immediately prior to the declaration of a state of emergency.” But prices may be increased in an amount which accurately reflects an increase in cost of the goods or services or an increase in the cost of transporting the goods or services into the area plus the retailer’s average markup percentage. Any person who suffers damage or injury as a result of a disaster related violation shall have a cause of action to recover actual damages, punitive damages, if appropriate, and reasonable attorney’s fees. O.C.G.A. §§ 10-1-393.4, 10-1-438
– Emergency business registration ordinances. Georgia law authorizes county and city governments to provide for emergency business registrations. “Notwithstanding any other provisions of law, the governing authority of any county or municipality may provide by ordinance for a program of emergency registration of all or certain designated classes of businesses doing business in the county or municipality during a state of emergency declared by the Governor. Such ordinance may be implemented for a period during which the state of emergency continues and for a subsequent recovery period of up to three months at the direction of the governing authority. In any county or municipality adopting such an ordinance, no business subject to the ordinance may do business in the county or municipality without first registering in conformance with the provisions of the ordinance.” O.C.G.A. § 38-3-56.
– Extension of deadlines under Georgia Lemon Law, which provides that “the lemon law rights period shall be extended by one day for each day that repair services are not available to the consumer as a direct result of a strike, war, invasion, terrorist act, blackout, fire, flood, other disaster, or declared state of emergency.” O.C.G.A. § 10-1-782
– The state board of education may authorize departure from the 180 day school year. O.C.G.A. § 20-2-168. (A number of counties have reduced the number of school days due to economic factors during the recession, but that is another story.)
– The Georgia Aviation Authority normally bills state agencies for use of state planes and helicopters. But “any billing to an agency by the authority shall be suspended whenever the Governor declares a state of emergency on any cost associated with aircraft used during and in response to the state of emergency.” O.C.G.A. § 6-5-4 (b)(5), § 35-2-140.
– Extension or postponement of qualifying periods and primaries and elections. O.C.G.A. § 21-2-50.1. Qualifying dates this year for state and federal elections in Georgia will be March 3-7, 2014. Let’s hope no state of emergency extends into March.
– Eminent domain law allows for condemnation of “blighted property” in an urban area if it “(A) Presents two or more of the following conditions: (i) Uninhabitable, unsafe, or abandoned structures; (ii) Inadequate provisions for ventilation, light, air, or sanitation; (iii) An imminent harm to life or other property caused by fire, flood, hurricane, tornado, earthquake, storm, or other natural catastrophe respecting which the Governor has declared a state of emergency under state law or has certified the need for disaster assistance under federal law; provided, however, this division shall not apply to property unless the relevant public agency has given notice in writing to the property owner regarding specific harm caused by the property and the owner has failed to take reasonable measures to remedy the harm.” O.C.G.A. § § 22-1-1
Finally, there are also emergency powers related to major public health emergencies that I hope will never go into operation, including suspension of health care facility certificate of need regulations and authorizing nurses and physician asisstants to sign death certificates during an influenza pandemic
Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.