A recent ruling in the Southern District of Florida will allow several cruise lines, including Norwegian Cruise Lines, to require passengers provide documentation certifying COVID-19 vaccination in Florida, despite recently enacted Florida legislation that outlaws the practice. On Aug. 8, U.S. District Court Judge Kathleen M. Williams entered an order granting Norwegian, Regent Seven Seas Cruises, and Oceania Cruises’ motion for a preliminary injunction to enjoin Florida from enforcing Section 381.00316, Florida’s vaccine passport ban statute, pending resolution of the lawsuit that they filed against Florida Surgeon General Scott Rivkees.

In Norwegian Cruise Line Holdings v. Rivkees, the cruise lines sought a preliminary junction to preserve their policy requiring all passengers, both guests and crewmembers, to provide documentation prior to boarding confirming they were fully vaccinated. This policy conflicts with Section 381.00316, which bans all businesses operating in Florida from requiring customers to provide documentation certifying COVID-19 vaccination status. Without the court’s ruling, the cruise lines would have faced potentially steep penalties if they implemented this policy. Section 381.00316 allows the Florida Department of Health to impose a fine of up to $5,000 “per violation.” For the cruise lines, this could mean a $5,000 fine for each customer denied access to their ships.

In ruling in favor of the cruise lines, the court discussed the severity of the COVID-19 pandemic, including the recent spike in cases due to the Delta variant. Williams pointed out that “cruising raises unique risks” of COVID-19 outbreaks due to the movement of large volumes of individuals in confined spaces for days and weeks. This creates a uniquely high risk for COVID-19 outbreaks due to the amount of person-to-person contacts aboard cruise ships. Infected passengers who disembark also run the risk of infecting their communities, thereby creating potential “super-spreader” events each time a cruise ship sets sail. The court also discussed the COVID-19 vaccines’ effectiveness against both COVID-19 and the delta variant in arguing that allowing cruise lines to certify that passengers are vaccinated promotes public health and helped to curtail the risks of cruising during a global pandemic.

The cruise lines asserted three legal theories to challenge Section 381.00316’s legality: that the statute violated the cruise lines’ First Amendment right to free speech; that the statute was unconstitutional under the dormant commerce clause; and that the statute was preempted by the Center for Disease Control and Prevention’s (CDC) conditional sailing order. The court ultimately decided the cruise lines had shown, even in this preliminary stage, a likelihood that the statue violated their First Amendment rights and the dormant commerce clause as applied to them. The court did not reach the issue of whether the CDC’s order preempted the statute.

The court also ruled that the statute was a restriction on speech, and not merely an economic regulation as the surgeon general argued, because it only prohibited businesses from requiring documentation regarding COVID-19, and not any other disease. The court also observed that that the text of the statute does not prohibit businesses from requiring proof of vaccination orally, but rather “only disallows businesses from requiring customers to verify their vaccination status with ‘documentation certifying COVID-19 vaccination or post-transmission recovery.’” The court noted that it is well-established that a law may constitute a speech-based restriction without outright banning speech. Thus, the court found the statute to be a content-based restriction on speech because “it restricts the free flow of information by rendering the exchange permissible in some circumstances but impermissible in others.”

While Florida argued that the court should apply a rational basis test in determining the statute’s constitutionality under the First Amendment, the court analyzed the statute under a heightened, intermediate scrutiny standard. The court determined that the statute could not meet this heightened standard because Florida did not have a substantial interest in protecting the rights of unvaccinated individuals during a global pandemic. Also, as noted previously, the statute did not even advance this interest as nothing in the statue prevented businesses from asking for proof of vaccination against COIVD-19 orally and further nothing in the statute prevented businesses from asking for other medical records or private health information. The Court explained that under the statute “businesses and employers are free to require COVID-19 test results, hospital records, other vaccination records, as well as information regarding exposure to third parties with COVID-19.” The court also explained that the Surgeon General failed “to explain why COVID-19 vaccination documents are more medically sensitive or need more protection than these other documents.”

As to the dormant commerce clause argument, the court agreed that the statute created a constitutional problem as applied to the cruise lines because cruise ships carry passengers across state, federal, and international waters. The court ruled that forcing cruise lines to abandon their vaccination policies would “impede” their ability “to manage the business of vessels at foreign and interstate ports and lead to incalculable and unpredictable delays in travel.”

Reprinted with permission from the August 26, 2021 edition of Daily Business Review © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.