Federal ruling prohibits Florida's cruise ship ‘vaccine passport’ ban; state to appeal

By John Haughey, The Center Square

Governor Ron DeSantis said Monday that Florida will appeal a federal ruling prohibiting the state from enforcing its ‘vaccine passport’ ban on the cruise line industry.

DeSantis told reporters the state is “absolutely going to pursue” an appeal “either at the full 11th circuit or at the US Supreme Court. I’m confident that we’d win on the merits, at the full 11th circuit and, honestly, I’m confident we’d win at the US Supreme Court.”

Ten minutes before U.S. Centers for Disease Control & Prevention’s (CDC) April rules regulating cruise ship operations were to become recommendations by order of Tampa-based U.S. District Judge Steven Merryday, a three-judge panel of the U.S. 11th Circuit Court of Appeals in Atlanta reinstated the CDC rules and granted the agency a temporary stay on Florida enforcing its newly-adopted 'vaccine passport’ ban.

The 2-1 ruling was released 11:50 p.m. Saturday – 10 minutes before Merryday’s 124-page decision went into effect after the state successfully argued CDC regulations on cruise ships issued in April were unfairly targeting Florida’s $8.1 billion cruise industry, which directly employs 160,000 state residents.

“CDC cites no historical precedent in which the federal government detained a fleet of vessels for more than a year and imposed comprehensive and impossibly detailed ‘technical guidelines’ before again permitting a vessel to sail,” Merryday wrote. “That is, CDC cites no historical precedent for, in effect, closing an entire industry.”

During their 2021 session, Florida lawmakers adopted Senate Bill 2006, which fines businesses or institutions up to $5,000 per violation if they require vaccine documentation and limits local emergency powers no more than 30 days.

In April, the CDC updated its conditional sail order for cruise ship that requires 95% of cruise ship passengers and 98% of crew be vaccinated and ships undergo 60-90 days of preparation and test-sailing before resuming full operations.

The order – supported by the cruise industry because a vast majority of customers want assurances crew and passengers are vaccinated – ran afoul of SB 2006, prompting the state to sue the CDC and the U.S. Department of Health & Human Services (HHS) in April.

On May 12, state and federal attorneys argued before Merryday in Tampa. A week-long mediation effort collapsed after an 11-hour session on May 27.

Merryday ruled the CDC order “exceed(s) the authority delegated to CDC” and allowed the CDC rules to remain in place for 30 days before becoming recommendations.

The U.S. Justice Department (DOJ) on behalf of the CDC appealed the ruling to the 11th Circuit, arguing in briefs filed July 15 that it is a federal, not state, to regulate ship traffic for communicable diseases.

“The CDC protocols at issue here require conventional communicable disease control measures on cruise ships traveling internationally, which is an area of traditional federal jurisdiction,” the DOJ maintains.

In issuing the one-paragraph decision granting the federal government’s request for an injunction staying SB 2006, the federal appellate judges did not elaborate on their reasoning or identify the dissenting justice. The ruling notes opinions will be posted later this week.

While not directly related, the federal appeals court ruling adds heft to Miami-based Norwegian Cruise Lines’ federal lawsuit challenging the state’s right to restrict cruise ship operators from requiring all passengers be vaccinated against COVID-19 once it restarts its Florida cruises Aug. 15.

Florida’s cruise ships have been port-side since last March. Disney Cruise Lines held its first simulated sailing under CDC rules Saturday when the Disney Dream departed from Port Canaveral. All passengers were volunteer Disney employees.