By Romy Jurado
Florida was one of the first states to lift its COVID-19 lockdown, officially to help businesses recover. But a new law in effect since September 16th may dampen the state’s reputation as a business-friendly environment, fining businesses up to $5,000 for each patron or customer who is required to show proof of vaccination. While it is already being challenged in court, the full implications of Florida’s “vaccine passport ban” remain uncertain and perplexing.
The Lead Up to the Ban
Vaccine mandates are highly polarizing nationwide. A survey by the National Restaurant Association found an almost three-way tie among respondents who say they would be less likely to visit a place with a mandate, those more likely to visit, and those who are indifferent.[i]
With an economy heavily dependent on tourism and hospitality, Florida appears to be betting that vaccine mandates will do more harm than good for businesses. In April, Governor Ron DeSantis issued an executive order blocking both private and public entities from requiring proof of COVID-19 vaccination by patrons or customers.[ii]
The following month, the Florida Legislature passed SB 2006—which was promptly signed into law by DeSantis—codifying the vaccine passport ban and permanently invalidating state and local lockdowns.[iii] Many of the state’s ad hoc responses to the pandemic are now grounded in law indefinitely, and businesses across the state must catch up to what may be the new normal.
Florida’s Statutory Vaccine Passport Ban
Effective July 1, 2021, section 381.00316 of the Florida Statutes expressly forbids requiring “COVID-19-vaccination documentation to access, enter, or receive service from businesses, governmental entities, and educational institution.” It also empowers the Florida Department of Health (FLDOH) to impose a fine of up to $5,000 for each violation of the statute.
Pursuant to this statutory authority, on August 27, the FLDOH published Rule 4-8.001 clarifying the language of the law and how it will be enforced.[iv] Penalties are set at the maximum rate of $5,000 and imposed “per individual and separate violation.” Violators are issued a notice of their infraction, which can be appealed, and will have 30 days to pay once a fine is finalized.
The wording of the rule, which came into effect on September 16, 2021, means even a small business could potentially face hundreds of thousands of dollars in fines for requesting vaccine documentation.
Legal and Constitutional Challenges
Barely two weeks after the vaccine passport ban came into effect, it met its first challenge by one of Florida’s largest industries. The Miami-based Norwegian Cruise Line Holdings, Ltd. (NCLH), the world’s third largest cruise company, filed a lawsuit in South Florida federal court claiming the statute violated the First Amendment and the dormant Commerce Clause of the U.S. Constitution, which limits states from indirectly and substantially burdening interstate commerce. The cruise line also sought a preliminary injunction, claiming that abiding by the law would lead to irreparable financial harm, as it planned to set sail in August following a fifteen-month hiatus.
On August 8, 2021, U.S. District Judge Kathleen Williams issued a 59-page order granting the injunction and finding that F.S. 381.00316 was likely unconstitutional.[v] While the ruling applies only to NCLH, and is currently being appealed by the State to the Eleventh Circuit Court of Appeals, it has inspired another recent legal challenge to the vaccine ban, this time in state circuit court. Citing the decision in Norwegian, a Sarasota hobby and craft store is suing the state in in Leon County circuit court on the same grounds, and is also seeking a preliminary injunction.
An Uncertain Future
Adding further to the confusion around the scope of Florida’s passport ban, on September 24, 2021, the Florida Department of Health informed Orange County that it is subject to penalties under the vaccine passport ban for mandating that public employees be vaccinated. Up until then, the law’s language appeared to apply to patrons or clients of entities, rather than their employees.
While no such warning has yet been issued to private businesses, a spokesperson for the governor’s office stated that the state is “looking at all legal options to protect the rights of employees.” The highly publicized spat with Orange County—one of Florida’s major economic centers—may have a chilling effect on businesses of all sizes and sectors, including major employers like Disney and Walmart, which are openly standing firm on their vaccine mandates.
In the meantime, business owners with varying attitudes towards vaccine mandates will have to contend with yet another complicated and tenuous obstacle to their pandemic recovery.
[i] Grace Dean, “1 in 3 Americans says a COVID-19 vaccine mandate would deter them from dining in a restaurant,” Business Insider (Sept. 9, 2021), www.msn.com/en-us/foodanddrink/foodnews/1-in-3-americans-says-a-covid-19-vaccine-mandate-would-deter-them-from-dining-in-a-restaurant/ar-AANYktA.
[ii] OFFICE OF THE GOVERNOR EXECUTIVE ORDER NUMBER 21-94 (Emergency Management –Extension of Executive0rder20-52-COVID-19) (April 27, 2021).
[iv] Kirby Wilson, “Florida Department of Health’s new rule: $5,000 fines for some vaccine mandates,” Tampa Bay Times (Sep. 1, 2021), https://www.tampabay.com/news/florida-politics/2021/09/01/florida-businesses-and-governments-face-5000-fines-for-mandatory-vaccinations/.
[v] Norwegian Cruise Line Holdings, Ltd., et al, v. Scott Rivkees, M.D., Case No. 21-22492-CIV-WILLIAMS.