Filing # 134674051 E-Filed 09/15/2021 03:24:23 PM

IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT

IN AND FOR ALACHUA COUNTY, FLORIDA

DARRIS FRIEND, et al.,

Plaintiffs,
Case No.: 2021-CA-2412
v.
Division: K
CITY OF GAINESVILLE,

Defendant.
________________________/

CITY OF GAINESVILLE’S RESPONSE IN OPPOSITION TO

PETITION FOR EMERGENCY INJUNCTIVE RELIEF

Defendant, the City of Gainesville (“City”) files this response in opposition to the

Plaintiffs’ Petition for Emergency Injunctive Relief. The Plaintiffs seemingly misapprehend the

nature of the City’s policy requiring employees to be vaccinated against COVID-19 as a general

exercise of police powers, rather than an application of an employer’s management prerogative.

Contrary to arguments raised by the Plaintiffs, the issues before the Court should center not on

whether employees are “forced” to receive vaccinations, but whether the City should be

prevented from applying broad, nondiscriminatory workplace regulations in its capacity as an

employer. Certainly, on a preliminary basis, the Plaintiffs are unable to meet the high threshold

to usurp the authority of the municipal corporation, City of Gainesville.

THE PLAINTIFFS ARE NOT ENTITLED TO TEMPORARY INJUNCTIVE RELIEF

As to the specific “Petition for Emergency Injunctive Relief” before the Court, the

Plaintiffs fail to satisfy any of the elements needed to justify injunctive relief.

[T]he issuance of a preliminary injunction is an extraordinary remedy which

should be granted sparingly, which must be based upon a showing of the
following criteria: (1) The likelihood of irreparable harm; (2) the unavailability of
an adequate remedy at law; (3) substantial likelihood of success on the merits; and
(4) considerations of the public interest.

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 City of Jacksonville v. Naegele Outdoor Advertising Co., 634 So.2d 750 (Fla. 1st.
DCA, 1994), citing Thompson v. Planning Commission, 464 So.2d 1231 (Fla. 1st
DCA 1985).

To demonstrate a prima facie case for a temporary or preliminary injunction, the Plaintiffs must

carry the burden of providing substantial, competent evidence of each of the elements necessary

to obtain the temporary injunction. Zupnick v. All Fla. Paper, Inc., 997 So.2d 1234, 138 (Fla. 3d

DCA 2008); St. John Inv. Mgmt. Co. v. Albaneze, 22 So.3d 728 (Fla. 1st DCA 2009). The

failure to show any one of the relevant factors mandates denial of a motion for preliminary

injunction. Glenn v. 1050 Corp., 445 So.2d 625, 626 (Fla. 3d DCA 1984). The Plaintiffs’ claim

fails on each of these prongs.

A. The Plaintiffs Are Not at Risk to Suffer Irreparable Harm

The Plaintiffs have no likelihood of irreparable harm under the employee vaccination

policy. Granted, if the Plaintiffs fail to comply with the employee vaccination policy, they will

be subject to progressive discipline, up to and including termination of employment. While loss

of employment is obviously significant, the harm is purely economic in nature. Economic

damages could be available as a remedy, if properly pled and proven. An injury is not

irreparable when it can be adequately compensated by a monetary award or money damages.

B.G.H Ins. Syndicate, Inc. v. Presidential Fire & Cas. Co., 549 So.2d 197 (Fla. 3d DCA 1989);

Kailin Hu v. Haitian Hu, 942 So.2d 992, 995 (Fla. 5th DCA 2006). “[T]he threat of loss of

employment does not constitute irreparable harm.” City of Boynton Beach v. Finizio, 611 So.2d

74 (Fla. 4th DCA 1992); see also Broward County v. Meiklejohn, 936 So.2d 742 (Fla. 4th DCA

2006); Dania Jai Alai Intern., Inc. v. Murua, 375 So.2d 57 (Fla. 1979).

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B. The Plaintiffs Have Other Adequate Remedies Available

On its face, the City’s Employee Vaccination Policy provides for accommodation for

medical or religious reasons in accordance with State and Federal labor law. Some of the

Plaintiffs may have already lodged requests for accommodations that will be reviewed

accordingly. Additionally, as a regulation applied to employees, as opposed to the general

public, the employees have access to all available remedies and collective bargaining rights that

may be asserted.

C. The Plaintiffs Do Not Enjoy a Likelihood of Success on the Merits

Most significantly, the Plaintiffs’ Petition for Emergency Injunctive Relief must be

denied because there is no substantial likelihood of success on the merits of this case. As

discussed above, the Plaintiffs have incorrectly framed their claim as a right to refuse

vaccination, instead, it should be viewed as a claim for the right to maintain employment while

refusing to comply with a workplace vaccine requirement.

1. The City’s Employee Vaccination Policy Does Not Violate Constitutional Due
Process Rights

There is no fundamental right to employment by the City. In Florida, “[a]n employee

may be terminated at will, without a showing of cause, where the employment contract between

the parties is indefinite as to the period of employment.” Linafelt v. Bev, Inc., 662 So.2d 986,

989 (Fla.1st DCA 1995). By contrast, tenured faculty positions have been held to constitute a

property interest. Drisin v. The Florida International University Board of Trustees, 2017 WL

3505299 (USDC, SD Fla 2017). None of the Plaintiffs enjoy tenure-like protections. In short,

the Plaintiffs, to the extent they are actually subject to the employee vaccination policy, are at-

will employees. The at-will employment status of the Plaintiffs precludes a claim, under the Due

Process clause of the Fourteenth Amendment, for a deprivation, “of life, liberty, or property,

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without due process of law …” U.S. Const. Amend. XIV, sec. 1. The Plaintiffs do “not have a

constitutionally protected property interest in [their] employment position and this claim is

without merit.” See Norris v. Stanley, 2021 WL 3891615, citing Bd. Of Regents of State Colls.

V. Roth, 408 U.S. 564 (1972). There is no law, and the Plaintiffs point to no legal authority, that

prohibits an employer’s ability to require vaccinations as a condition of employment.

Overwhelmingly, the agencies tasked with interpreting and enforcing laws governing

employer-employee relations have endorsed employer vaccination policies. For example, the

Equal Employment Opportunity Commission (“EEOC”), which is responsible for interpretation

and enforcement of federal non-discrimination laws, updated its public guidance on May 28,

2021, by stating employers may require that employees be vaccinated for COVID-19, subject to

reasonable accommodations for employees with disabilities or a sincerely held religious belief

that precludes them from being vaccinated. See U.S. Equal Employment Opportunity

Commission, Technical Assistance Manual on What You Should Know About COVID-19 and

the ADA, the Rehabilitation Act, and Other EEO Laws, updated May 28, 2021, at § K.5.,

available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-

rehabilitation-act-and-other-eeo-laws. The Occupational Safety and Health Administration

(“OSHA”), which is responsible for workplace safety, has also stated that it is, “working

diligently to encourage COVID-19 vaccinations.” See United States Department of Labor,

Occupational Safety and Health Administration, Frequently Asked Questions, available at

https://www.osha.gov/coronavirus/faqs#vaccine.

2. The City’s Employee Vaccination Policy Does Not Violate Constitutional Equal
Protection Rights

Pointedly, this is an instance of the City acting as an employer, rather than utilizing police

powers as a State actor. The City’s Employee Vaccination Policy undertakes no effort to require

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anything of anyone other than the employees of the municipal corporation, City of Gainesville.

However, there is ample precedent for even such comprehensive State action requiring

vaccinations under exigent circumstances. The United States Supreme Court has observed that a

person’s liberty interest from physical restraint is not absolute, and there are, “manifold restraints

to which every person is necessarily subject for the common good.” Kansas v. Hendricks, 521

U.S. 346, 357 (1997) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905)). This

principle is reflected in earlier cases in which the Supreme Court held that involuntary quarantine

for contagious diseases and a state-imposed requirement of mandatory vaccination do not violate

constitutional protections. See Jacobson, 197 U.S. at 25 & 29 (mandatory vaccination for

smallpox); see also Compagnie Francaise De Navigation a Vapeur v. La. State Bd. of Health,

186 U.S. 380, 396–97 (1902) (permitting involuntary quarantine of persons suffering from

communicable diseases). In Jacobson v. Commonwealth of Massachusetts, the Supreme Court

considered a claim that the state’s compulsory vaccination law -- enacted amidst a growing

smallpox epidemic -- violated the defendant’s Fourteenth Amendment right, “to care for his own

body and health in such way as to him seems best.” Jacobson, 197 U.S. at 26. The Court

rejected this claim. Famously, it explained that the, “liberty secured by the Constitution … does

not import an absolute right in each person to be, at all times and in all circumstances, wholly

freed from restraint.” Id. Rather, “a community has the right to protect itself against an

epidemic of disease which threatens the safety of its members.” Id. at 27. In describing a state’s

police power to combat an epidemic, the Court explained, “in every well-ordered society charged

with the duty of conserving the safety of its members the rights of the individual in respect of his

liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be

enforced by reasonable regulations, as the safety of the general public may demand.” Id. at 29.

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 3. The City’s Employee Vaccination Policy Does Not Violate Constitutional Right to
Privacy

The Plaintiffs fail to point to any law, regulation, rule, or decisional authority supporting

the notion that the constitutional right to privacy is implicated in an employer-initiated

vaccination policy. Again, the City’s Employee Vaccination Policy does not constitute State

action. It is an exercise of management authority by the municipal corporation. It is not a law of

general or even specific application. It is not a “law.”

Even if the City’s employment rule were misconstrued as State action, it would survive a

challenge based on privacy rights. Traditionally, constitutionally-protected fundamental rights to

privacy include the right to marry, to choose whether to carry a pregnancy, to decide how to raise

one’s children, and the ability to reject artificial life support. See Loving v. Virginia, 388 U.S. 1

(1967); Obergefell v. Hodges, 576 U.S. 644 (2015); Griswold v. Connecticut, 381 U.S. 479

(1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Kirton v.

Fields, 997 So.2d 349 (Fla. 2008); Schiavo v. Bush, 885 So. 2d 321 (Fla. 2004). None of these

freedoms extends to the right to employment in an unvaccinated condition. Again, this case is

not about the right to remain unvaccinated; it is about the claimed right to employment without

complying with a vaccination requirement.

4. The City’s Employee Vaccination Policy Does Not Violate Fla. Stat. § 381.00316(2)
– Florida’s New Vaccine Passport Law

The Plaintiffs’ contention that the City’s Employee Vaccination Policy violates the new

Florida Vaccine Passport Law included in Fla. Stat. § 381.00316(2) frankly runs counter to the

plain language of the statute. Fla. Stat. § 381.00316(2) provides,

(2) A governmental entity as defined in s. 768.38 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. This subsection does not otherwise restrict governmental

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 entities from instituting screening protocols consistent with authoritative or
controlling government-issued guidance to protect public health.

The constitutionality of the statute aside (see Norwegian Cruise Line Holdings, Ltd. V. Rivkees,

2021 WL 3471585 (U.S. Dist. Ct, S.D. Fla., August 8, 2021), it is plainly inapplicable. The City

is clearly a “governmental entity as defined in s. 768.38,” but this City’s Employment

Vaccination Policy does not restrict persons trying to, “gain access to, entry upon, or service

from the governmental entity's operations.” There is no reasonable interpretation of this

language to equate continued employment with the ability to access, enter, or receive services.

Individuals who have terminated employment with the City, whether voluntarily or involuntarily,

routinely access and enter City facilities for a panoply of reasons. Likewise, former employees

avail themselves of the full range of municipal services provided by their former employer.

“Access” does not equate to “employment.” Fla. Stat. § 381.00316(2) has no application to the

City’s Employee Vaccination Policy. “When the statutory language is clear, ‘courts have no

occasion to resort to rules of construction — they must read the statute as written, for to do

otherwise would constitute an abrogation of legislative power.’” Daniels v. Florida Dept. of

Health, 898 So.2d 61, 65 (Fla. 2005), citing Nicoll v. Baker, 668 So.2d 989, 990–91 (Fla.1996).

As an aside, the legislative history of Fla. Stat. § 381.00316(2) provides absolutely no support of

its application in this context. There is no law, governmental agency, or public policy that

prevents the City from requiring a vaccinated workforce for the protection of its employees, co-

workers, and the community.

5. The City’s Actions as an Employer in Response to the COVID-19 Pandemic

As repeatedly stated in this memorandum, the City’s Employee Vaccination Policy is not

State action subject to the constraints argued by the Plaintiffs. However, the City is still able to

justify and explain its motives in enacting its lawful workplace regulation. As acknowledged by

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the Plaintiffs, the City has maintained critical operations throughout the course of this worldwide

pandemic. The City’s employees have endured numerous, new safety protocols, most notably

including masking, social distancing, and remote operations. Throughout the pandemic the

elected City Commission and appointed Charter Officers have received ongoing presentations

from local health and medical authorities regarding the state of local health, and the efficacy of

responses, including vaccination. These presentations have largely been in the public sphere at

numerous City Commission meetings and weighed heavily by the Charter Officers in

undertaking their duties. Under the Charter Laws of the City, the Charter Officers – City

Manager, General Manager for Utilities, City Attorney, City Auditor, Equal Opportunity

Director, and City Clerk -- are the administrative heads of the operations and responsible for the

administration of the departments under their respective authority.

Additionally, the Charter Officers have available to them an abundance of data on the

state of the pandemic, locally. In particular, Alachua County maintains an online dashboard

containing daily and weekly account of numbers of persons infected, hospitalized, and

vaccinated. The data is broken down into multiple categories. Quite persuasive is the data and

demonstrative charts showing local hospitalizations, and comparing the numbers of individuals

hospitalized with COVID-19 distinguished between those who have been vaccinated and

unvaccinated. The dashboard and ongoing data are located at

https://dashboards.alachuacounty.us/COVID19/. A sample of the demonstrative charts is

provided below:

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As is shown, the data supports the widely-accepted fact and prevailing science that the

vaccinations protect against the most severe impacts of COVID-19. Of course, these most severe

impacts, hospitalization and death, are those that most impact the vulnerable operations of the

City as an employer and provider of critical services. Throw in the somewhat crass, but

significant, impact that disproportionate hospitalizations and consequential medical costs would

have on the City’s self-funded employee health insurance program, and the decision to institute

an Employee Vaccination Policy overcomes all reasonable criticisms.

D. The Injunctive Relief sought by the Plaintiffs Would Harm the Public Interest

Lastly, the injunctive relief sought by the Plaintiffs would greatly harm the public

interest. Ironically, the Plaintiffs themselves begin their Complaint with a procedurally-

inappropriate, impertinent “Introduction” that underscores the public purpose that would be

disserved by enjoining the City’s Employee Vaccination Policy. The Plaintiffs state,

Just a few months ago, the City called the employees and contractors named
above “heroes.” The City called them heroes because, while their managers and

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 many co-workers sheltered at home during the worst of the pandemic, the
Plaintiffs went to work each and every day to ensure that the City’s infrastructure
– its power grid, its roads, its wastewater, its emergency services – to ensure that
infrastructure continued to function. The Plaintiffs endured the risks of exposure
to Covid while most others safely hid in their homes.

While the preceding diatribe may understate the degree to which the Plaintiffs’ managers and co-

workers also persisted through difficult and risky work environments, it does not underestimate

the daunting risks presented by COVID-19, especially prior to the wide distribution of approved,

effective vaccines. The Plaintiffs’ Introduction also recognized that this pandemic was, “now,

nearly two years in;” in other words, it is ongoing. The critical infrastructure that the City is

obliged to maintain compels employees to work together in close proximity at worksites,

firehouses, cabs of vehicles, and other close quarters, despite the risks associated with a

pandemic. The critical services provided mandate the interaction with residents and visitors who

require emergency services, transportation, and vital utility services. There is a strong public

interest found in the vaccines’ ability to make these interactions safer and more reliable. The

Plaintiffs recognize that they bore great risks in the pre-vaccine phase of the pandemic. Now

that vaccines are available, those risks may be mitigated if all of the employees of the City would

abide by the Employee Vaccine Policy. As an employer, the City recognizes a moral obligation

to all employees, including those who desire to make their workplace safer by ensuring that all

co-workers without legitimate medical and religious concerns are vaccinated.

Also ironically, the Plaintiffs direct the Court’s attention to the new Vaccine Passport

Law. As discussed above, the conduct proscribed by Fla. Stat. § 381.00316(2) is not implicated

in this matter, but in defining some terms, the section refers to Fla. Stat. § 768.38, which

establishes “Liability protections for COVID-19-related claims.” Fla. Stat. § 768.38 powerfully

describes the Legislature’s findings regarding the public interest implicated by the COVID-19

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pandemic, and provides an extraordinary protection from liability. In relevant part, Fla. Stat. §

768.38 states,

(1) The Legislature finds that the COVID-19 outbreak in this state threatens
the continued viability of … governmental entities … that contribute to the
overall well-being of this state. The threat of unknown and potentially unbounded
liability to such … entities …, in the wake of a pandemic that has already left
many of these … entities … vulnerable, has created an overpowering public
necessity to provide an immediate and remedial legislative solution. Therefore,
the Legislature intends for … governmental entities … to enjoy heightened legal
protections against liability as a result of the COVID-19 pandemic. The
Legislature also finds that there are no alternative means to meet this public
necessity, especially in light of the sudden, unprecedented nature of the COVID-
19 pandemic. The Legislature finds the public interest as a whole is best served by
providing relief to these … entities … so that they may remain viable and
continue to contribute to this state.
…
(2) As used in this section, the term:
…
(d) “Governmental entity” means the state or any political subdivision thereof,
including … municipalities … .
…
(2) In a civil action based on a COVID-19-related claim:
…
(c) The court must determine, as a matter of law, whether:
…
2. The defendant made a good faith effort to substantially comply with
authoritative or controlling government-issued health standards or guidance at the
time the cause of action accrued.
…
b. If the court determines that the defendant made such a good faith effort, the
defendant is immune from civil liability. If more than one source or set of
standards or guidance was authoritative or controlling at the time the cause of
action accrued, the defendant's good faith effort to substantially comply with any
one of those sources or sets of standards or guidance confers such immunity from
civil liability.

The Legislature, in Fla. Stat. § 768.38, recognized the threat to municipal operations

brought about by the COVID-19 pandemic, and responded to the “overwhelming public

necessity” with an extraordinary grant of immunity. That immunity, however, is premised on a

municipality’s “good faith effort to substantially comply with authoritative or controlling

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government-issued health standards or guidance.” What better source of authoritative

government issued health guidance is there than the Centers for Disease Control and Prevention

and, especially in a workplace setting, the Occupational Safety and Health Administration, as

referenced earlier in this memo? It is the express intent of the Charter Officers of the City of

Gainesville as the operational leaders of the City’s workforce to enact the Employee Vaccination

Policy as an effort to carry out and comply with this authoritative guidance.

The City’s Employee Vaccination Policy is also consistent with a growing number of

employers across the nation, both public and private, who are enacting similar policies (with

regard to employees or college students). Several of these policies have already survived initial

constitutional challenge. See Jennifer Bridges, et al. v. Houston Methodist Hospital, et al., 2021

WL 2399994, -- F.Supp.3d -- (USDC, SD Tex. 2021); Klaassen, et al. v. The Trustees of Indiana

University, 2021 WL 3073926, -- F.Supp.3d -- (USDC, ND Ind., 2021); Norris v. Stanley, Jr.,

2021 WL 3891615, -- F.Supp.3d – (USDC, WD Mich. 2021). In upholding the employee

vaccination requirement at issue in Houston Methodist, the U.S. District Court specifically held,

Although her claims fail as a matter of law, it is also necessary to clarify that
Bridges has not been coerced. Bridges says that she is being forced to be injected
with a vaccine or be fired. This is not coercion. Methodist is trying to do their
business of saving lives without giving them the COVID-19 virus. It is a choice
made to keep staff, patients, and their families safer. Bridges can freely choose to
accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply
need to work somewhere else.

That direct language underscores the vitality of employer vaccine requirements.

Additionally, as was widely disseminated last week, the President of the United States of

America has issued an Executive Order calling for the, “Mandatory Coronavirus Disease 2019

Vaccination for Federal Employees,” with some limited exceptions. As stated by the President

in Section 1 of the Executive Order, “The Centers for Disease Control and Prevention (CDC)

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within the Department of Health and Human Services has determined that the best way to slow

the spread of COVID-19 and to prevent infection by the Delta variant or other variants is to be

vaccinated.” Persuasively, the White House has recognized the authoritative guidance of the

CDC, and acted to undertake an employee vaccination requirement.

The public interest is best served by the City maintaining its critical operations in the

safest and most effective manner possible. Respectfully, neither the Court nor the Plaintiffs

should try to supersede the professional employment management decisions of the municipal

corporation, City of Gainesville.

E. Conclusion

COVID-19 is a novel coronavirus, but vaccine requirements are not novel. Widespread

vaccine mandates that are far more sweeping in scope that the employee policy at issue in this

case have been authorized and implemented for more than 100 years. See Jacobson, supra. In

the words of George Washington, upon ordering the mandatory smallpox inoculation of colonial

troops in 1777, “Necessity not only authorizes but seems to require the measure, for should the

disorder infect the Army in the natural way and rage with its usual virulence we should have

more to dread from it than from the Sword of the Enemy.”

Respectfully, the Plaintiffs have failed to provide substantial, competent evidence of each

of the elements necessary to obtain the temporary injunction, and such relief must be denied.

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
electronic mail to Seldon J. Childers, Esquire, Childers Law, LLC ([email protected];
[email protected]) on this 15th day of September 2021.

/s/ Daniel M. Nee___________________________

Daniel M. Nee, B.C.S.
Board Certified in City, County & Local Government Law
Florida Bar No.: 0047521
Brian W. Franklin
Florida Bar No.:
City of Gainesville - Office of the City Attorney
P.O. Box 490, Station 46
Gainesville, Florida 32627
[email protected]
[email protected]
[email protected]
Phone: (352) 334-5011; Fax: (352) 334-2229

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