Filing # 134391344 E-Filed 09/10/2021 04:28:16 PM IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA Case No.: 2021-CA- 2021 CA 001588 _ Division: BEAD ABODE, INC., a Florida Corporation Plaintiff, vs. STATE SURGEON GENERAL AND HEAD OF ‘THE FLORIDA DEPARTMENT OF HEALTH, in their official capacity; Defendant SSS COMPLAINT AND DEMAND FOR EMERGENCY INJUNCTIVE RELIEF Plaintiff, Bead Abode, Inc. (hereafter “Bead Abode”), by and through undersigned counsel, files this Complaint and Demand for Emergency Injunctive Relief against Defendant ‘Surgeon General and Head of The Florida Department of Health, in their official capacity, and seeks this relief and all other relief deemed appropriate by this Court to prevent immediate, ongoing and irreparable harm to Bead Abode in violation of its First Amendment Free Speech rights as guaranteed by the Constitution of the United States of America, and in support thereof states: INTRODUCTION AND BACKGROUND 1. Bead Abode bead store is a retail hobby and craft store located in Sarasota, Florida. Bead Abode offers bead and gemstone products, hobby and crafting supplies, and offers group instruction (“classes”) on skills related to the creation of jewelry and otherwise offers a venue for customers and patrons to express their creativity and socialize among others with a shared interest. 2. Many of Bead Abode’s customers are retirees and some have existing health concerns. Bead Abode has a reputation for operating with the utmost attention to the safety and health of its customers and for that reason closed its doors to customers on March 14", 2020, approximately two weeks before the State of Florida issued a stay-at-home order and has offeredDocusign Envelope ID: SBEAZFS-251A-4A0C-B64B-E6B7SOC2EF46 only online sales and classes since that time. 3. As it appeared that the pandemic was waning and a vaccine became readily available, Bead Abode made preparations to reopen to customers in the same safe and healthy ‘way its customers have come to rely on and expects to reopen by month's end. The plan for a safe reopening includes a requirement that customers provide documentation of vaccination. Because of its reputation and expectation for health and safety, and because classes and other events can last between one and two hours, involving close contact between members of the public; a requirement that customers be vaccinated is reasonable to minimize the risk of causing an infection or outbreak among Bead Abode’s staff and customers, and to maintain its reputation for safety and brand trust. 4, An obstacle to Bead Abode’s reopening plan is Florida’s recently enacted law, Florida Statute 381.00316 prohibiting businesses from requiring customers or patrons to “provide any documentation certifying COVID-19 vac tion or post-infection recovery to gain access to, entry upon, or service from the business operations in this state.” Penalties for violation of this law are up to $5,000 per customer. Absent the relief being sought to enjoin Defendant 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. 5. Bead Abode was encouraged upon hearing of the ruling by United States District Judge Kathleen M. Williams granting a preliminary injunction enjoining the same Defendant from enforcing the same statute at issue in this case against a cruise line operator. In a 59-page written order, the Court outlined a thorough analysis of First Amendment law as the primary basis for granting its injunction. (Norwegian Cruise Line Holdings, Ltd. v. Rivkees, 21-22492- CIV, 2021 WL 3471585 (S.D. Fla. Aug. 8, 2021). 6. Despite a well-reasoned and detailed opinion as to why the statute in question is likely unconstitutional, Defendant has chosen to proceed with rulemaking and is set to begin enforcement on September 16%, 2021 .‘Docusign Envelope ID: 6BEAZF3-251A-4A0C-8648-EB875902EF48 VENUE AND JURISDICTION 7. As provided by Section 86.011 of the Florida Statutes, this court has subject and the matter in matter jurisdiction over this action because itis an action for declaratory rel controversy is within the jurisdictional limits of this court. 8. Venue is proper in this Court under Florida law and acts giving rise to these claims occurred here. DECLARATORY RELIEF REQUESTED 9. Plaintiff is an interested party whose legal rights and privileges are affected by la Statute 381.00316 and Plaintiff is in doubt as to the existence or nonexistence of these rights and privileges and is entitled to have such doubt relieved. Plaintiff has a bona fide, actual, present, and practical need to have this doubt removed as Defendant is intent on enforcement of an unconstitutional law to the detriment of Plainti if's constitutional free speech rights. 10. Further, the adverse legal interests of the parties are of sufficient immediacy and materiality to warrant a Declaratory Judgment as Defendant is intent on enforcement against all businesses in the State of Florida beginning September 16", 2021. 11. Plaintiff seeks a declaration that Florida Statute 381.00316 is a facially lation of the United unconstitutional infringement upon First Amendment free speech in States Constitution and Constitution of the State of Florida and that Plaintiff be awarded costs and reasonable and necessary attomey's fees, and that the Court grant such other and further relief that may be awarded at law or in equity. ARGUMENT 12. For brevity and simplicity of the legal issue presented, Plaintiff presents the following exert from the Souther District's Order in Norwegian Cruise Line Holdings, Ltd. v. Rivkees, 21-22492-CIV, 2021 WL 3471585 (S.D. Fla, Aug. 8, 2021), at page 16, footnotesDDocusign Envelope ID: 7BEAZF3-251A-4A0C-8648-EB8759C2EF48 omitted, as the court’s reasoning is directly applicable to Plaintiff's circumstances and really the circumstances of any other Florida Business desiring to protect its customers by requiring documentary proof of vaccination: 4a, Section 381.00316 is a content-based restriction on speech “The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.”” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (citing U.S. Const. amend. 1), Pursuant to this clause, a state “has no power to restrict expression because of its message, its ideas, its subject, matter, or its content.” Id. (citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional. . ..” Id. (citing RA.V. v. St. Paul, 505 U.S. 377, 395 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991)). “Government regulation of speech is content based if law applies to a particular speech because of the topic discussed or the idea or message expressed.” Id. “This commonsense meaning of the phrase ‘content based’ requires a court to consider whether the regulation of speech ‘on its face” draws distinctions based on the message a speaker conveys.” Id. A law is a content-based restriction of speech if it “singles out specific subject matter for differential treatment.” Barr v. Am. Ass'n of Pol. Consultants, Inc, 140 S. Ct. 2335 (2020) (citation omitted). “One reliable way to tell if a law is restricting speech is content-based is to ask whether enforcement authorities must ‘examine the content of the message that is conveyed’ to know whether the law has been violated.” Otto v. City of Boca Raton, Fla., 981 F.3d 854, 862 (11th Cir. 2020) (citing McCullen v. Coakley, 573 U.S. 464, 479 (2014)). Section 381.00316 is a content-based restriction because, on its face, it draws distinctions based on the message of speech. See Reed, 576 USS. at 163. In other words, it is apparent from the text of the law that speech is regulated differently because of its subject matter and content. The Statute prohibits businesses from requiring their patrons to present “documentation certifying COVID-19 vaccination or post-infection recovery” for access or services. Fla. Stat. § 381.00316(1). However, nothing in the Statute prohibits businesses from demanding documentation of a negative COVID-19 test or any other type of medical or informational documentation. In fact, because the Statute allows businesses to institute “screening protocols” to protect public health, id, business entities are expressly permitted to require this type of documentation, includingDocuSign Envelope ID: BEAZF3-251A-4A0C-B64B-E687S0C2EF4® COVIDI9 test results, other vaccine documentation, and other types of medical information. Under Section 381.00316, the only documentation businesses cannot demand is COVIDI9 vaccine documentation. Accordingly, the statute is a content-based restriction because it singles ‘out documentation regarding a particular subject matter (certification of “COVID-19 vaccination or post-infection recovery”) and subjects it to restrictions (businesses may not require them for entry or services) that do not apply to documents regarding other topics. See Barr, 140 S. Ct. at 2346 (“Because the law favors speech made for collecting government debt over political and other speech, the law is a content based restriction ‘on speech.”); Otto, 981 F.3d at 862 (“If adorable videos of puppies are allowed and horrifying videos of puppy abuse are not, that restriction is based on content, no matter how desirable it may be.”); Wollschlaeger v. Governor, State of Fla., 848 F.3d 1293, 1307 (11th Cir. 2017) (“The record-keeping, inquiry, and anti-harassment provisions of [the federal Firearm Owners Protection Act] are speaker-focused and content-based restrictions. They apply only to the speech of doctors and medical professionals, and only on the topic of firearm ownership.”). Application of the analyses set forth by the Supreme Court in Reed and Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), demonstrates that Section 381.00316 is a content-based restriction on speech. Reed involved a First Amendment challenge to a code that regulated outdoor signs adopted by the town of Gilbert, Arizona. See Reed, 576 U.S. at 159. The code prohibited the display of signs within the town without a permit, but exempted 23 categories including “Ideological Signs,” “Political Signs,” and “Temporary Directional Signs.” Id. at 159-162. The exemptions were based on the sign’s content: “Ideological Signs” communicated a message for a noncommercial purpose; “Political Signs” were signs designed to influence the outcome of an election; and “Temporary Directional Signs” directed the public to church or some other qualifying event. Id. Under the code, each exemption was subject to a different set of restrictions; “Temporary Directional Signs” were treated less favorably than the other two exemptions, which were subject to more lenient size and temporal restrictions. Id. In a majority opinion authored by Justice Clarence ‘Thomas, the Supreme Court concluded that “[o}n its face, the Sign Code is content-based regulation of speech” because “[tJhe restrictions in the Sign Code that apply to a given sign [] depend entirely on the communicative content of the sign.” Id. at 164-165. The Supreme Court emphasized that, by imposing more stringent restrictions to signs with directional content than those with ideological or political messages, the code was a content-based law because it “single[d] out specific subject matter for differential treatment.” Id. at 156. Sorrell presented a First Amendment challenge to a Vermont law that prohibited pharmacies from selling _prescriber-identifying_DocuSign Envelope ID: SBEAZF3-251A-4A0C-B645-EB8759C2EF48 information—pharmacy records that revealed the prescribing practices of individual doctors—to marketers or “detailers,” or allow the information to be used for marketing purposes without the prescriber’s consent, See 564 US. at 557-59. However, under the law, pharmacies could sell, and allow this information to be used for, other purposes including research, compliance with health insurance formularies, educational communications provided to patients, or law enforcement. Id. at 559—60. ‘The Court concluded that, “[o}n its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information.” Id. at 563—64. Justice Anthony Kennedy, writing for the majority, emphasized that “those who wish{ed] to engage in certain ‘educational communications’ . . . may purchase the information,” but that the statute “bars any disclosure when recipient speakers will use the information for marketing.” Id. at 564 (internal citation omitted). Accordingly, the Court concluded that the law was content based because it “disfavorfed] marketing, that is, speech with a particular content.” Id. Reed and Sorrell make clear that a law constitutes a content-based restriction if it singles out particular speech on a subject matter for less favorable treatment. Similar to the laws in Reed and Sorrell that disfavored “Temporary Directional Signs” and marketing, Section 381.00316 singles out and disfavors documentary proof of COVID-19 vaccination, subjecting this particular content to greater restrictions than other forms of documentation. While businesses are prohibited from requiring customers to produce COVID-19 vaccination documentation, they are free to demand other categories of documents to provide services. As such, Section 381.00316 constitutes a content-based restriction on speech. 13, The Southem District goes on to analyze whether any exceptions exist that would allow enforcement of this statute without violating the First Amendment before concluding that none exist. 14, Norwegian sought only an “as applied” determination of the constitutionality and therefore only received an “as applied” ruling however there is nothing in the court’s reasoning that would address why all other businesses in the State of Florida would not be entitled to the very same constitutional protections afforded to Norwegian, therefore, Plaintiff seeks its determination in this case on an “as applied” basis as well as a “facially unconstitutional” basis.DDocuSign Envelope ID: SBEAZF3-251A-4A0C-8648-EB87SOC2EF4S 15. Moreover, even prior to enforcement starting, this statute has had the effect of chilling otherwise protected free speech. As widely reported, World-Class Restaurateur and Owner of the award-winning Beach Bistro Restaurant on Anna Maria Island, Sean Murphy, has required its fine dining guests to be vaccinated but due to the law in question, cannot request or require proof of vaccination, Other examples include the cancellation of comedian Patton Oswalt’s four Florida tour dates because of Florida Venues inability to require proof of vaccination. EMERGENCY INJUNCTIVE RELIEF 16. Plaintiff adopts and reincorporates the allegations of paragraphs 1-15. 17. Florida Statute Section 26.012(3) gives this court the power to issue injunctions. 18. Plaintiff is likely to succeed on the merits of its First Amendment claim because it intends to require the same documentation contemplated by the Plaintiffs in Norwegian Cruise Lines vs. Rivkees. 19. Because Plaintiff is likely to succeed on the merits of its First Amendment Claim and because “[tJhe loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Norwegian Cruise Lines vs. Rivkees citing Elrod v, Burns, 427 U.S. 347, 373 (1976) (citing New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) Plaintiff easily demonstrates irreparable harm. 20. Plaintiff also expects to sustain harm to its reputation, trust of its customers and patrons, and loss of good will which cannot be adequately remedied at law against Defendant. Allowing unvaccinated customers and class attendees into Bead Abode’s store increases significantly the risks of COVID-19 transmission and Bead Abode’s brand trust would beDDocuSign Envelope ID: eBEAZF3-251A-4A0C-B648-E68759C2EF48 harmed or possibly destroyed if an outbreak were to occur among its staff or customers. 21. Because plaintiff has shown that Section 381.00316 is likely unconstitutional, the balance of harm and the public interest weigh in its favor. The harm to Bead Abode’s Brand, ‘Trust, and goodwill will suffer substantial injury if it is not allowed to reopen with these safety protocols in place. Meanwhile, despite vast amounts of publicly available information showing the protections afforded to vaccinated individuals and groups of individuals as a whole, Defendant cannot and has not articulated any basis upon which the state would suffer harm if an injunction were entered. For the reasons above stated, Plaintiff seeks from this court a declaration that Florida Statute 381.00316 is unconstitutional on its face and as applied; as well as a temporary emergency injunction enjoining defendant from enforcing Florida Statute 381.00316 pending resolution of the merits of this case. oe ‘Andrew R. Boyer, Esq. Attorney for Plaintiff Florida Bar Number: 0035409 Boyer & Boyer P.A. 46. Washington Bivd., Ste. 21 Sarasota, FL 34236 Telephone: (941) 365-2304 Fax: (941) 364-9896 Mail: aboyer@boyerboyer.com ‘Secondary E-Mail: service@boyerboyer.com