Judge rejects a craft store's First Amerndment argument over state's vaccine passport ban

A Leon County circuit judge has refused to block a state law that bans vaccine passports, rejecting arguments by a Sarasota business that the law violates First Amendment rights.

The ruling by Circuit Judge Layne Smith was a victory for Gov. Ron DeSantis, who has led efforts to prevent businesses from requiring customers to show proof they are vaccinated against COVID-19 - an issue that has become known as requiring vaccine passports.

Smith also split from a South Florida federal judge, who sided in August with Norwegian Cruise Line Holdings in a challenge to the state law. In both cases, the plaintiffs argued that the law was an unconstitutional restriction on speech.

But Smith, in a six-page decision Thursday, rejected the First Amendment arguments of Bead Abode, a Sarasota hobby and craft store, and refused to issue an injunction against the law. Smith said the basic issue in the case is whether the law restricts speech or regulates conduct.

“The only issue before the court, and the only one the court decided, is whether (the law) abridges Bead Abode’s First Amendment right to freedom of speech,” Smith wrote. “It does not. Instead, the statute regulates the plaintiff’s conduct.”

Smith, who was appointed as a circuit judge by DeSantis after serving as a county judge, also pointed to the Legislature’s authority and said the law “assures open markets.”

“Prohibiting businesses from requiring patrons to produce documentary proof of vaccination or recovery may or may not be a good idea,” he wrote. “Notwithstanding, that decision belongs solely to the Legislature and is subject to approval or rejection by the voters at the ballot box.”

The Republican-dominated Legislature passed the law in April, with the state threatening fines against businesses that violate it. Bead Abode has closed its doors since early in the pandemic, though it sells products online and offers online classes.

Bead Abode developed a plan to reopen but wanted to require customers — many of whom are seniors — to show proof of vaccination to help prevent the spread of the virus.

“Absent the relief being sought to enjoin defendant (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,” attorney Andrew Boyer, whose wife, Kirsten, owns the store, wrote in the lawsuit.

In the ruling, Smith wrote that he has “great respect” for U.S. District Judge Kathleen Williams, who sided with Norwegian Cruise Line Holdings in the federal lawsuit, but added “this court must review the law and make its own decision.”

Williams’ August decision applied only to Norwegian. In it, she wrote that the law is a “content-based restriction” on speech, as it targets documentation but allows businesses to request other information from customers about issues such as vaccinations.

“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),” wrote Williams, who was nominated to the bench by former President Barack Obama. “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.’”

The state has appealed Williams’ decision to the Atlanta-based 11th U.S. Circuit Court of Appeals.

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