State Fires Back in Challenge to 'Passport' Ban

By Jim Saunders, News Service Florida

July 28, 2021

TALLAHASSEE --- With a hearing scheduled next week, attorneys for Gov. Ron DeSantis’ administration are asking a federal judge to reject arguments by Norwegian Cruise Line Holdings that a state ban on so-called “vaccine passports” is unconstitutional.

The state’s attorneys on Tuesday filed a 28-page document contending that U.S. District Judge Kathleen Williams should turn down Norwegian’s request for a preliminary injunction against the vaccine-passport ban.

The ban, a priority of DeSantis, prevents businesses from requiring customers to show proof of vaccination against COVID-19. Norwegian filed the lawsuit July 13, saying the ban would prevent it from carrying out a plan to require passengers to be vaccinated.

In the document Tuesday, the state’s attorneys wrote that Florida has exercised its “sovereign power” in banning vaccine passports and refuted the cruise line’s constitutional arguments.

“The state of Florida has been in the vanguard of protecting its most vulnerable citizens from COVID-19 while at the same time seeking to protect Floridians from the unprecedented intrusion into personal liberties that the pandemic has sparked,” the state’s attorneys wrote. “Exercising its sovereign authority through its traditional police power of safeguarding public health, safety and the economic well-being of its citizens, the Florida governor and Legislature have determined that businesses in the state should be prohibited from denying service to customers who decline to provide documentation certifying COVID-19 vaccination --- so-called ‘vaccination passports’ --- or post-COVID-19 recovery.”

But in the lawsuit, Norwegian said it is scheduled to resume sailing Aug. 15 and that “one anomalous, misguided intrusion (the vaccine passport ban) threatens to spoil NCLH’s (Norwegian Cruise Line Holdings’) careful planning and force it to cancel or hobble upcoming cruises, thereby imperiling and impairing passengers’ experiences and inflicting irreparable harm of vast dimensions.”

“The upshot places NCLH in an impossible dilemma as it prepares to set sail from Florida: NCLH will find itself either on the wrong side of health and safety and the operative federal legal framework, or else on the wrong side of Florida law,” the lawsuit said.

The cruise industry shut down in March 2020 after high-profile outbreaks of COVID-19 on ships early in the pandemic. The federal Centers for Disease Control and Prevention in October issued what is known as a “conditional sailing order” that included a phased approach to resuming cruising during the pandemic, with ship operators needing to meet a series of requirements.

DeSantis in April issued an executive order banning businesses, including cruise ships, from requiring proof of vaccination from customers. The Legislature later approved a bill that placed the ban in state law.

Meanwhile, Florida Attorney General Ashley Moody, backed by DeSantis, filed a lawsuit challenging the CDC’s conditional sailing order. Tampa-based U.S. District Judge Steven Merryday sided with the state in June and issued a preliminary injunction against the conditional sailing order.

Williams, who is based in Miami, is scheduled Aug. 6 to hear arguments in Norwegian’s request for an injunction against the vaccine-passport ban. The named defendant in the lawsuit is state Surgeon General Scott Rivkees, a DeSantis appointee.

Norwegian has raised a series of constitutional issues in the lawsuit, including that the ban conflicts with federal law and regulations and, as a result, is “preempted.” Also, the cruise line has contended the ban violates the First Amendment and what is known as the “dormant Commerce Clause” of the U.S. Constitution.

In its preemption argument, for example, Norwegian pointed to its efforts to meet CDC requirements to resume cruises. As part of that process, it told the CDC that at least 95 percent of passengers and 95 percent of crew members on cruises out of Miami would be fully vaccinated.

“Florida’s ban … prohibits NCLH from requiring its customers to provide documentation certifying COVID-19 vaccination to gain access to, entry upon or service from NCLH’s cruise ships in Florida,” the lawsuit said. “Florida’s ban, by prohibiting NCLH from obtaining vaccination documentation from its passengers, makes it impossible or inordinately difficult for NCLH to satisfy the option created by CDC of resuming sailing in U.S. waters if NCLH can verify that 95% of its crew and 95% of its passengers are fully vaccinated prior to sailing.”

But in the document filed Tuesday, the state’s attorneys pointed to the injunction that Merryday issued against CDC restrictions in the conditional sailing order. Also, the lawyers wrote that other cruise lines met CDC requirements through an option known as conducting “simulated” voyages, which involve testing COVID-19 preparedness. The state alleged that Norwegian could have used that option but didn’t for competitive reasons.

“Norwegian’s case, therefore, is not about public health but rather about a business decision it has made in an apparent attempt to reduce costs and distinguish the company from its competitors, including by promising its passengers that it would be sailing with fully vaccinated ships (not even suggested by any CDC guidance),” the state’s attorneys wrote. “Norwegian’s profitability does not override Florida’s sovereign decision to protect its citizens’ personal liberties, health and privacy through (the vaccine passport ban).”

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