Q&A – Understanding The Legal Implications Of Florida’s Ban On Vaccine Passports
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Today’s entry: I was listening to you this morning concerning iThink Financial Amphitheater possibly violating Florida State Statute 381.00316 and Gov. DeSantis' Executive Order # 21-81. My question to you is if there is any violation or criminal liability to the workers allegedly conducting these checks at the direction of superiors at the amphitheater. I read the statute and while it says no business entity may require patrons to provide proof of vaccination status, and the fine can be up to $5000 per occurrence, it does not specifically state that individuals working for the entity can be fined. Do you have any insight into this? Thank you for your response.
Bottom Line: Yes, I can provide more color on this topic and thank you for the question. Now that Leon County has become the first shoe to drop, and with over 100 more entities currently being investigated for violations of Florida’s law banning proof of vaccination as a condition of service, including Live Nation’s iThink Financial Amphitheater, it’s a good time to dive into the specifics of what could happen here. I’ll start with something you asked about, but which no longer holds relevance. Governor DeSantis’s executive order. The governor’s executive order preceded the passage of the law and no longer retains specific relevance as a law established by the state’s legislature and signed by the governor retains supremacy over similar executive actions. That said about what can happen to whom...
The law breaks out three clear distinctions. Guidelines for “A business entity”, “A governmental entity” and “An education institution”. Here are the provisions of the law that pertain to each.
- Business Entity: Any business operating in this state, may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state.
- Governmental Entity: May not require persons to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the governmental entity's operations in this state.
- Educational Institution: May not require students or residents to provide any documentation certifying COVID-19 vaccination or post-infection recovery for attendance or enrollment, or to gain access to, entry upon, or service from such educational institution in this state.
So, as we’re identifying the potential liability under the law it’s important to note that while similar, the provisions of the law are different based on the type of entity we’re discussing. What isn’t different? The penalty. It’s the same for all violations. Under the law the Florida Department of Health may impose a fine not to exceed $5,000 per violation. Notably, while the law states a fine can be less than $5,000, the first fine issued to Leon County was the maximum of $5,000 for each of the 714 violations cited.
In addressing your question as to whether specific employees may be fined... under the law there are no specific infractions for individuals. This means employees of any entity are individually immune from punishments being directly imposed by the Florida Department of Health under the law. Now, that’s not to say all individuals are off the hook from personal liability. While personal penalties can’t be imposed based on this law, there are multiple ways individuals may be held liable due to civil considerations and other state laws. On that note...starting with government employees...
Under Florida law the governor may (by way of executive order) the Governor may suspend from office any elected or appointed municipal official for malfeasance, misfeasance, neglect of duty, habitual drunkenness, incompetence, or permanent inability to perform official duties. In the Leon County example in front of us the case could certainly be made that the officials involved in the decision-making process and implementation of the unlawful policy would be in neglect of duty at a minimum. Additionally, the potential for civil action may be taken by any victim of these policies. Civil action could have the potential to implicate individuals in the addition to the entities they work for.
The question on the minds of many, especially those entities currently being investigated by the state is what happens now? Leon County said they’ll sue the state over this in the hope of having the state’s law struck down. That might be the strategy, but it could prove to make an already expensive mistake more costly. Lawsuits have already been filed against the law prior to any fines being issued, however a stay of the law hasn't been granted. That generally means the legal hill to climb by those challenging it is high. It’ll be interesting to see how many entities who’ve imposed vaccine mandates as a condition of service will rethink their policies prior to being sanctioned by the Florida Department of Health.