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Law360 (April 9, 2021, 4:14 PM EDT) -- Florida Gov. Ron DeSantis' swift move to ban so-called COVID-19 vaccine passports is likely to invite legal challenges, with businesses, including major players such as the Miami Heat and Norwegian Cruise Line, already making plans for such programs to draw back cautious customers, experts told Law360.
As governments and businesses around the world consider tying proof of vaccination to access to goods and services as a strategy for expediting the re-opening process and incentivizing vaccination, the Republican governor sought to end the debate in the Sunshine State, issuing an executive order prohibiting the controversial practice.
DeSantis' order said that requiring proof of vaccination to take part in everyday activities such as attending a sporting event or going to a restaurant or movie theater "would create two classes of citizens based on vaccination" and threaten individual freedoms, health privacy and the free flow of commerce. But attorneys said it also raises questions about businesses' own rights.
"Some businesses may see this as an illegal restriction on their right to choose who can come into their businesses for the safety and protection of their staff, customers and their families," said Mike Ryan, a partner at Freedland Harwin Valori Ryan PL who is also the mayor of the South Florida city of Sunrise. "Some businesses may have customers and employees who want certainty that the other customers have been vaccinated."
Nathan Adams, a Tallahassee-based partner at Holland & Knight LLP, said that while DeSantis' order states that it does not restrict businesses from instituting COVID-19 screening protocols that comply with state and federal laws, businesses may still feel it impedes their ability to protect themselves from the proliferation of lawsuits seeking to hold them liable for customers' or employees' COVID-19 infections.
"The private sector is kind of of the view that, 'Well, if it's true that we have a duty to look after these folks, then surely there's a commensurate ability for us to take the steps necessary in order to fulfill that duty,'" Adams said. "That's what we hear from clients."
Potential lawsuits might claim that the governor's ban exceeds his powers under the Florida Emergency Management Act or that it violates fundamental property rights, Adams said.
The act, which the order cites for its authority, grants the governor considerable leeway to address disasters — including control over state agencies and the latitude to suspend rules and statutes — but Adams said the passport ban arguably goes beyond a mere suspension.
And while there are plenty of circumstances in which governors' emergency actions impact the private sector, Adams said he thinks that authority "is a little more circumscribed than with respect to state agencies and the like."
Adams also pointed to state appeals court Judge Adam Tanenbaum's assertion in a dissenting opinion last September that the state's suspension of a strip club's liquor license for alleged violations of COVID-19 safety protocols implicated a property right which carries inalienable due process rights.
To remove such a fundamental right, the targeted party typically must be given an opportunity to present arguments and the state must explain quite specifically why the defendant poses a threat, Adams said.
"The bottom line is that there's this issue of property rights that potentially the state's courts are going to have to deal with," Adams said. "It's pretty fascinating because I think most Floridians are in favor of a governor having authority to respond to emergencies and nobody wants to suggest otherwise, but there are obviously some countervailing interests as well that this order implicates."
Several businesses have already announced plans to either require vaccine proof or attach it to certain benefits for customers. The Miami Heat said at the beginning of the month that a limited number of fans could enter through a separate entrance and sit closer together in "vaccinated sections" if they presented their CDC-issued paper vaccination cards. And on Monday, Norwegian said it would require all guests and crew to be fully vaccinated as part of a plan to resume cruising July 4. The South Beach Wine and Food Festival also has announced plans to require proof of vaccination or a negative COVID-19 test at its event in May.
Freedland Harwin's Ryan said he could also see legal challenges arising from provisions in DeSantis' order that tie business licenses and government grants and contracts to compliance with the vaccine passport ban.
"There are certainly potential legal issues, particularly if a business feels it is responding to the demands of customers only then to be punished by being denied a license to operate in the state or they are denied a state grant or contract," he said. "A noncompliant business may have a cause of action against the state and the agencies involved."
Although attorneys pointed out a variety of concerns and possible holes in the governor's order — Adams also cited undefined terms and possible separation of powers issues — others said it is built on strong rationales.
DeSantis' focus on protecting health privacy, which has emerged as a major issue in the broader debate over vaccine passports, could prove difficult to overcome in court, according to Harsh Arora, a partner at Kelley Kronenberg LLP who focuses on business litigation and transactions.
"That is a touchy subject that is going to be tough to get past," Arora said. "[The governor] definitely has some appeal as far as what his basis is or what he's been vocal about."
Arora also said he views the order as a positive step from the standpoint of giving businesses sought-after direction from government and by potentially creating a defense in the kind of COVID-19 liability cases that Adams referenced.
"At least it is not going to be a blame game where these businesses will be blamed for not going this far," Arora said. "There's clarity, at least for business counsel. … We can now give proper guidance to Florida-based businesses on this issue."
Similarly, Louis J. Terminello, chair of the hospitality, alcohol and leisure industry group at Greenspoon Marder LLP, said that while he was personally surprised by the governor's quick move, he does not want to see a return to the kind of confusing mix of orders from different levels of government that has made it "quite a mission" to give clients accurate advice during the pandemic.
Terminello said he is aware of clients who are interested in vaccine passports, particularly within the struggling nightlife and restaurant industries, but overall he has seen a mix of reactions to DeSantis' order.
"There are some clients who applaud the decision because it's one less thing they have to do to get people in the door. On the other hand, we have clients who believe that having some kind of control is a good thing so that their patrons would feel comfortable entering the venues," he said.
A representative for the Miami Heat declined to comment on DeSantis' order and did not respond to a question of whether the team has changed any protocols since its release. And a spokesperson for Norwegian Cruise Line Holdings Ltd. said, "We look forward to working with Governor DeSantis to safely resume our operations from Florida ports," but also reiterated the company's intention to require vaccinations during its initial relaunch. A representative for the South Beach Wine and Food Festival did not respond to an inquiry.
How the issue progresses in Florida will be shaped by a number of factors, including future infection and vaccination rates, the experts said.
DeSantis' order set the ban to remain in effect until he lifts the state of emergency for the pandemic, but the governor also tweeted that the Legislature is working on making these protections permanent, Arora noted.
Meanwhile, the Biden administration has said the private sector will take the lead on developing vaccine passports but recently signaled that the federal government may offer guidelines on potential standardized proof-of-vaccine credentials.
"Like anything else, it's brand new," Terminello said. "There's going to be some situations and anomalies and misguidance that's going to pop up, and there may be a need for a tweak down the road."
--Editing by Kelly Duncan.
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