Federal Court Enjoins Florida Statute Prohibiting Cruise Line From Requiring Proof of Covid Vaccination
Norwegian Cruise Line Holdings, Ltd. v. Rivkees, 2021 U.S. Dist. LEXIS 148279 *, 2021 WL 3471585 (S.D. Fl. Aug. 8, 2021).
Fla. Stat. § 381.00316[1] prohibits any business operating in Florida from requiring any patron to provide proof of vaccination against COVID-19 or post infection recovery in order to enter the establishment. The legislation went into effect on July 1, 2021; a maximum $5,000 fine may be imposed for violation of the statute.[2] Norwegian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian Cruise Line; Seven Seas Cruises S. De R.L., d/b/a Regent Seven Seas Cruises; and Oceania Cruises S. De R.L., d/b/a/ Oceania Cruises (collectively NCLH) intended to resume passenger service from Miami on or about August 15. The cruise lines sought a preliminary injunction against Dr. Scott Rivkees, the Surgeon General of Florida and the head of the Florida Department of Health asserting constitutional challenges to the statute.
NCLH asserted that the statute as applied violated their constitutional rights under the First Amendment, the dormant Commerce Clause and Due Process. In addition, the cruise lines maintained that the statute is preempted by Conditional Sailing Order of the Center for Disease Control.
Judge Kathleen M. Williams first held that under the analysis of Reed and Sorrell v. IMS Health Inc.,[3] the statute is a content based restriction on free speech.” Section 381.00316 singles out and disfavors documentary proof of COVID-19 vaccination, subjecting this particular content to greater restrictions than other forms of documentation. While businesses are prohibited from requiring customers to produce COVID-19 vaccination documentation, they are free to demand other categories of documents to provide services. As such, Section 381.00316 constitutes a content-based restriction on speech.”[4] In addition, the court held that the statute imposes a substantial burden on interstate commerce and thus violates the dormant commerce clause. Having found these constitutional violations, the court did not reach whether the CDC conditional sailing order preempted the Florida statute.
The plaintiffs were likely to succeed on the merits of the First Amendment and Dormant Commerce clause violations and would suffer irreparable injury; thus, they were entitled to a preliminary injunction prohibiting enforcement of the statute.
[1] § 381.00316 (1) A business entity, as defined in s. 768.38 to include any business operating in this state, may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health.
[2] § 381.00316 (4)
[3] 564 U.S. 552, 131 S. Ct. 2653, 180 L. Ed. 2d 544 (2011)
[4] 2021 U.S. Dist. LEXIS 148279 *27
