Florida Gov. Ron DeSantis (R)
The cruise industry just scored a big win against Florida Governor Ron DeSantis (R) over COVID-19 regulations. U.S. District Judge Kathleen M. Williams of the Southern District of Florida issued a 59-page ruling on Sunday, meticulously detailing the many legal shortcomings of Florida’s prohibition against “vaccine passports.”
Since the start of the COVID-19 pandemic, a triangle of legal drama has been building between the CDC, the cruise industry, and DeSantis. At first, Florida and the cruise lines appeared to be united in interest. The governor had been pursuing a legal challenge against the CDC’s open-ended “no-sail order,” when a three-judge panel of the U.S Court of Appeals for the 11th Circuit ruled in the CDC’s favor. Then, in late July and after Florida filed an emergency petition with the Supreme Court of the United States, the 11th Circuit did a complete about-face, reversing its own order and essentially lifting the no-sail order.
Any seeming alliance between the cruise industry and the state of Florida, however, was to be short-lived; Norwegian Cruise Lines (also known in court papers as “NCLH”) has its own litigation pending against Florida over COVID-19 regulations. DeSantis isn’t just opposed to the CDC’s imposing safety regulations on private business — he’s also against private businesses making their own COVID-19 regulations if those regulations include requiring proof of vaccination.
Back in April 2021, DeSantis issued an executive order prohibiting businesses in Florida from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business.” Shortly thereafter, the Florida state legislature passed a bill (which DeSantis signed into law) expanding that executive order, and prohibiting businesses from requiring so-called “vaccine passports,” and imposing a $5,000 fine for non-compliance.
It’s that law with which the cruise industry takes issue. Norwegian has, in response to concerns about the safety of cruising, chosen to implement strict COVID-19 protocols in accordance with CDC guidance. As Judge Williams, a Barack Obama appointee, explained in her ruling, the cruise industry has chosen to rely on vaccine passports to create customer confidence:
In resuming sail, NCLH and other cruise lines face the difficult challenge of restoring consumer confidence while assuaging concerns about COVID-19 exposure and outbreaks. According to a May 2021 poll, only 50 percent of respondents are confident that the cruise industry can reopen safely coming out of the pandemic. Another poll revealed that 80 percent of respondents would prefer to sail on a cruise with a vaccine requirement.
In an effort to ensure 95-percent vaccination rates for those aboard, Norwegian needs documented proof of vaccination status from those traveling:
To address customer anxiety, NCLH has implemented a policy of requiring full vaccination of its crew and passengers until October 31, 2021. In addition, the company is requiring all passengers to provide some documentation proving their COVID-19 vaccination status before boarding. NCLH explains that it has adopted this policy as a measure to prevent a COVID-19 outbreak onboard, build brand trust and goodwill with customers, ensure compliance with the attestation it submitted to the CDC, and take advantage of the leniency afforded cruise ships with 95 percent vaccinated passengers and crew under the CDC’s Operation Manual.
Noting that Florida’s law allows businesses to require employees to prove their vaccination status, but prohibits the same proof from customers, Williams found that the law could not withstand a constitutional challenge. Norwegian, Williams ruled, would likely prevail on the merits of its legal challenge because Florida’s law is a content-based regulation which violates the First Amendment. From the opinion:
Simply put, Defendant contends that Section 381.00316 is not governed by the First Amendment, because it only “affects what businesses cannot do… not what they may or may not say.” The Court is not persuaded by this argument.
As a content-based restriction on speech, the court found that strict scrutiny was appropriate. However, Judge Williams noted that even using the lower level of scrutiny generally applicable in cases involving commercial speech, Florida’s argument still fails. The bottom line: Florida simply has no good reason to ban businesses from requiring proof of vaccination from customers. Williams wrote that Florida “has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing,” and noted that there is “no evidentiary support” for the argument that Floridians “have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation.”
Furthermore, Williams clarified, the unvaccinated are not a legally “protected class,” and even if they were victimized by discrimination, Florida’s statute does nothing to help.
If the First Amendment analysis wasn’t enough, Judge Williams also found that the Florida statute fails under a Dormant Commerce Clause analysis; under that legal framework, states are prohibited from enacting regulations that burden interstate commerce. Judge Williams again noted that the Florida statute “does not actually advance the objectives of protecting ‘medical privacy’ and ‘discrimination’ against unvaccinated individuals in any meaningful way.”
Turning to the cruise industry in particular, Williams noted that cruise lines face the difficult task of ensuring their passengers comply with COVID-19 regulations in the countries to which they travel. “Amid myriad, rapidly-changing requirements regarding quarantining and testing,” wrote Williams, “there is one constant that facilitates cruise line customers’ access to advertised ports of call: documentary proof of vaccination…” The absence of documented proof of vaccination, Williams continued, will “lead to incalculable and unpredictable delays in travel.”
For the present time, Norwegian has scored a preliminary injunction against Florida’s statute. This means the cruise giant can move forward, requiring passengers to submit documented proof of vaccination. The Norwegian Gem is scheduled to set sail from Miami on August 15, 2021.
Frank Del Rio, president and chief executive officer of Norwegian Cruise Line Holdings Ltd. issued the following statement:
The health and safety of our guests, crew and the communities we visit is our number one priority, today, tomorrow and forever. It’s not a slogan or a tagline, we fiercely mean it and our commitment to these principles is demonstrated by the lengths our Company has gone through to provide the safest possible cruise experience from Florida. We want nothing more than to sail from Miami, the Cruise Capital of the World, and from the other fabulous Florida ports and we welcome today’s ruling that allows us to sail with 100% fully vaccinated guests and crew which we believe is the safest and most prudent way to resume cruise operations amid this global pandemic.
[Photo by Joe Raedle/Getty Images.]
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