By Carolina Bolado

Law360 (July 13, 2021, 7:49 PM EDT) -- Norwegian Cruise Line asked a Florida federal court on Tuesday to invalidate a state law barring businesses from requiring proof of COVID-19 vaccination for customers, saying it is preempted by federal laws and regulations and prevents the cruise line from operating safely.

Norwegian Cruise Line Holdings Ltd. asked for a preliminary injunction to block the law and enable it to proceed with a planned sailing Aug. 15 from Miami without risking the "crushing penalties" under the Florida state law of up to $5,000 per passenger.

The state prohibition is preempted by federal regulations and violates the First Amendment by blocking communications between a business and its customers, namely preventing passengers from providing information about their vaccination status, according to the suit. Norwegian says the law also disrupts the proper flow of interstate and international commerce without advancing any substantial state interest, in violation of the dormant commerce clause.

The company says it is in an impossible situation as it tries to comply with both Centers for Disease Control and Prevention regulations and Florida state law.

"[Norwegian Cruise Line Holdings] will find itself either on the wrong side of health and safety and the operative federal legal framework, or else on the wrong side of Florida law," Norwegian said.

Norwegian says the CDC has approved its application for a conditional sailing certificate for the Norwegian Gem, assuming at least 95% of the crew and passengers are vaccinated against COVID-19. If the cruise line can't guarantee that everyone on board is vaccinated, then it will have to comply with much stricter distancing and masking requirements on board and passengers may not be able to disembark at ports of call that require either proof of vaccination or a mandatory quarantine, according to the suit.

The company added that in polls of potential cruise passengers, a significant majority said they would prefer cruises where all passengers and crew are vaccinated.

"We believe Florida's prohibition is on the wrong side of federal law, public health, science and is not in the best interest of the welfare of our guests, crew and the communities we visit, therefore, we have reluctantly turned to the courts for relief," the company said in a statement.

Florida Gov. Ron DeSantis banned so-called vaccine passports with an executive order in April that blocked any business or government entity from requiring proof of COVID-19 vaccination for entry. The state Legislature followed that up with a bill codifying the substance of DeSantis' order, which he then signed into law in May.

DeSantis also sued the CDC in April to overturn the ban on cruising that had been in effect since March 2020. The CDC has since issued a conditional sailing order that establishes a four-phase process for cruise lines to reopen.

The state claims the conditional sailing order is an unconstitutional exercise of legislative power and violates the Administrative Procedure Act as an arbitrary and capricious agency action.

U.S. District Judge Steven D. Merryday granted Florida an injunction last month that temporarily blocks the agency from applying COVID-19 regulations to Florida ports.

A representative for the Florida Department of Health did not immediately respond to a request for comment Tuesday.

Norwegian is represented by John F. O'Sullivan, Olga M. Vieira, Derek L. Shaffer and Jonathan G. Cooper of Quinn Emanuel Urquhart & Sullivan LLP.

Counsel information for the state was not immediately available Tuesday.

The case is Norwegian Cruise Line Holdings Ltd. v. Rivkees, case number 1:21-cv-22492, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Dave Simpson and Nathan Hale. Editing by Stephen Berg.

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