Florida ‘vaccine passport’ ban blocked at sea by federal judge could be nixed on land by state judge

(The Center Square) – Two months after a federal judge ruled Florida’s “vaccine passport” ban on businesses violates the First Amendment, a circuit court judge will hear a challenge to the same law on the same grounds in state court.

Leon County Circuit Judge Layne Smith on Thursday in Tallahassee will hear a Sarasota bead-and-craft store’s lawsuit against Senate Bill 2006, which bans businesses from requiring vaccination proof of patrons or face $5,000 fines for each violation.

Bead Abode Inc., in a lawsuit lodged Sept. 10 against the Florida Department of Health (DOH) and State Surgeon General Dr. Joseph Ladapo, argues the law violates the First Amendment and seeks an injunction to enjoin SB 2006.

In its lawsuit, the company said it closed its shop in March 2020 because of the pandemic and exclusively sold materials and classes online. It planned to reopen this month, but wants to impose a vaccine requirement because many of its customers are retirees with health issues and won’t come to the shop without assurances fellow patrons are vaccinated.

"Absent the relief being sought to enjoin (the state) from enforcement of this clearly unconstitutional content-based restriction on protected speech, Bead Abode would be forced to choose between its commitment to the safety of its customers and crushing penalties from enforcement of this law," Bead Abode attorney Andrew Boyer wrote.

Bead Adobe’s claim in state court is similar to what Norwegian Cruise Line argued in its federal lawsuit against SB 2006. Norwegian filed a 19-page lawsuit in July challenging the constitutionality of an April executive order issued by Gov. Ron DeSantis and subsequently adopted SB 2006.

On Aug. 9, U.S. District Judge Kathleen Williams agreed with Norwegian’s arguments, noting the state cannot regulate interstate marine traffic and that SB 2006 violates the First Amendment. In her 59-page ruling, she wrote SB 2006 poses “content-based restriction” on First Amendment speech by targeting documentation, or “passports.”

“While companies cannot require customers to verify their vaccination status with ‘documentation,’ the statute does not prohibit businesses from verifying vaccination status in other ways (e.g., orally),” Williams wrote. “Accordingly, under (the law), businesses could still ‘discriminate’ against unvaccinated individuals by adopting a vaccination requirement, which they could enforce by requiring oral verification of vaccination status before entry or by deterring unvaccinated patrons from entering by putting up signs that read ‘vaccinated customers only’ and ‘unvaccinated patrons are not allowed.’”

While Williams enjoined the state from enforcing SB 2006 on cruise ships, its “vaccine passport ban” remains on land and Florida plans to prosecute businesses that violate it.

There are more than 120 alleged violations “under review” by the DOH, according to a list released at the insistence of the Orlando Sentinel.

Among entities facing potential $5,000 fines: Orange County government, the Orange County Convention Center, Disney, Carnival and Royal Caribbean cruise lines – despite the federal court order – AT&T, Northrop Grumman, the Florida Department of Law Enforcement’s (FDLE) counterterrorism squad, Equinox, House of Blues and the Miami Marlins.

Florida is appealing Williams’ ruling before the 11th U.S. Circuit in Atlanta. It contends SB 2006 does not violate the First Amendment.

“The law simply prohibits businesses from conditioning service on customers providing documentation certifying COVID-19 vaccination,” the state argues. “Norwegian may still request that documentation from its customers, its customers may voluntarily provide it, and both parties are free to discuss the topic. What Norwegian may not do is deny service to customers who fail to provide that documentation.”

In response to Bead Adobe’s suit, state attorneys make a similar argument, maintaining SB 2006 "restricts only conduct, not speech, and therefore does not implicate the First Amendment."

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