Maria Oramas gets the first dose of the Pzifer COVID-19 vaccine Monday in Miami. Credit: Marta Lavandier / AP

ANNA MARIA ISLAND, Florida — When would-be diners place a call to Beach Bistro to make a reservation, they’re greeted with the usual rigmarole of questions: What time do they plan on coming in? How many people are in their party? Have they dined there before?

Lately, there’s a new one: Are they vaccinated?

The majority of people respond yes, and seem comfortable sharing their status, said owner Sean Murphy.

But for those that don’t, Murphy has this response: “We encourage you to get vaccinated,” he tells them. “We would ask that you please give us a call back after you’ve gotten your vaccination.”

In other words: If you’re not vaccinated, sorry, but you’re not dining with us.

Murphy is one of the only — maybe the only — local restaurateur asking this question. Other Tampa Bay restaurants have gone so far as to encourage their diners to get vaccinated on social media posts. And some have publicly advertised the vaccination status of their staff as an assurance to concerned guests.

And though Murphy is verbally asking his customers about their vaccine status, he has stopped short of requiring any kind of documentation from his diners. Legally, he can’t.

While a growing number of restaurants across the country are adopting vaccine requirements for diners, Florida’s Senate Bill 2006 explicitly prohibits businesses — including restaurants — from requiring proof of vaccination from customers.

Gov. Ron DeSantis issued an executive order on the issue in April, and the Florida Legislature later passed a bill putting the ban in state law. The law limits a local government’s ability to impose COVID-19 restrictions like mask mandates and also prohibits business, schools and government agencies from requiring people to show documentation certifying COVID-19 vaccinations before gaining entrance.

Until now, the biggest player to challenge the law has been the cruise ship industry. A federal judge this week sided with Norwegian Cruise Line Holdings in a constitutional challenge to the ban, clearing the way for the company to require all passengers to show proof of a COVID-19 vaccination, even on ships leaving from Florida.

As the highly contagious delta variant surges in Florida and restaurants see a sharp uptick in the number of employees testing positive for the virus, some owners say they don’t know how to keep their staff and customers safe.

Murphy believes the best way is to limit his dining room to vaccinated people only. His celebrated fine dining restaurant stayed closed for six months in 2020, during which the restaurant underwent extensive renovations to better ventilate the space with a state-of-the-art air purifier and a brand new HVAC system. He brought in a local company to help with weekly testing for his employees, all of whom have now been vaccinated.

Murphy is hoping that more restaurant owners will follow his lead and start requiring customers to be vaccinated, too. The way Murphy sees it, businesses might not legally be allowed to ask for documentation from their patrons, but there’s nothing in the law stipulating that they can’t ask.

His method leans heavily on the honor system. But Murphy said he believes his guests are being truthful.

“I think people will probably answer honestly 95 percent of the time,” he said. “Why bother lying about something so petty as a restaurant reservation?”

Greg Hearing, an attorney specializing in labor and employment law at the Tampa firm GrayRobinson, calls the verbal approach “risky” and said he’s been advising his restaurant clients not to inquire about vaccination status at all.

“I advise people, don’t even ask because you can’t require documentation,” Hearing said. “Why ask and then run the risk that you’re going to get one of those people that maybe is politically charged and is going to be upset about being asked and then report it?”

The penalty for requiring proof of vaccination is a $5,000 fine, enforced by the Florida Department of Health. Each fine is assessed per customer, which means that if a table of five people were turned away from a restaurant for refusing to show their vaccine ID cards, that restaurant owner could potentially be staring down a $25,000 fine, Hearing said.

“Particularly in the hospitality industry, that kind of a fine, is a very serious fine, especially if it’s going to be enforced individually like that,” Hearing said. “That’s just just not feasible for a business.”

Hearing said he’s fielded several calls in the past couple weeks from clients concerned about protecting their staff and customers but unsure of how much they can ask of diners without breaking the law. One of his restaurant clients has gone so far as to shut down temporarily, in an effort to mitigate the risk to their employees and wait out the current case surge.

Some other states have implemented similar vaccine passport bans including Arkansas and Texas. Meanwhile, vaccine requirements for diners are quickly becoming a widespread practice in the industry in states without bans, including at a growing number of restaurants in Seattle, San Francisco, Chicago, Philadelphia, Portland, Los Angeles and New Orleans.

On Aug. 16, New York City will become the first U.S. city to mandate city-wide vaccine requirements for visitors to indoor restaurants, gyms and entertainment venues. New York restaurateur and Shake Shack founder Danny Meyer made national news when he recently announced that all employees and indoor diners at his restaurants in the Union Square Hospitality Group will have to show proof of vaccination.

Shake Shack, which is a separate company from the large restaurant group and has a newly opened location in Tampa, does not currently have a vaccine mandate, a spokesperson for the company said. The Midtown Tampa outpost of the popular fast food restaurant recently closed for deep cleaning after an “incident of COVID-19,” and has since reopened.

“At this time, Shake Shack is not requiring proof of vaccination from our guests,” Shake Shack brand communications specialist Katie Scott wrote in an email. “While we strongly encourage our team members to get vaccinated, we are not currently mandating it. Shake Shack does not have immediate plans to implement vaccination requirement policy, but will follow any local or state regulations put into place.”

Hearing, along with other legal scholars, predicts blanket vaccine mandates will likely see constitutional challenges in the future. He said it’s less likely but still possible that more challenges will arise for Florida’s vaccine passport ban outside of the cruise ship industry, especially if COVID-19 cases continue to fuel hospitalizations in the state. On Monday, the Centers for Disease Control and Prevention reported 28,317 new cases in Florida and a weekly average of 22,484 new cases a day.

Beyond financial and legal repercussions, social media backlash is providing another deterrent to restaurants looking to amp up their vaccine and mask protocols.

Murphy said that while his regular customers have been supportive of his new policy, he’s received some nasty phone calls and barraging comments online.

“There’s ugly exclamations from the dark corners of the web,” he said. “But I guess that’s just life now.”

Yelp, the social media networking website for diners, recently launched a feature that allows businesses to note if all of their staff has been fully vaccinated and whether proof of vaccination is required for guests. Part of the effort is in response to what the website calls “review bombing,” from Yelpers spamming a business with a slew of negative reviews for COVID-19 protocols like mask and vaccine mandates.

“In recent weeks, we’ve seen a rise in reviews focused on people’s stance on COVID vaccinations rather than their actual experience with the business,” Noorie Malik, Yelp’s Vice President of User Operations, wrote in a blog post. “To help protect businesses that may experience backlash for their vaccination policies, we are proactively monitoring Yelp pages of businesses that activate these attributes.”

Last fall, the National Restaurant Association launched their own de-escalation training program to help support restaurant workers facing customer pushback and combative guests.

When asked about Florida’s ban on vaccine passports, Carol Dover, the president and CEO of the Florida Restaurant and Lodging Association, praised DeSantis and said the governor’s actions showed a “clear priority to support freedom and personal choice in Florida.”

“Governor DeSantis is putting the responsibility and the choice back in the hands of individuals by prohibiting local governments from enacting different local rules,” Dover said in an emailed statement. “If a customer wants to wear a mask to a restaurant, they can. If a business wants to require masks, social distancing, and vaccination of staff in their establishment, they can.”

Short of being able to enforce mask mandates or vaccine requirements for customers, a growing number of restaurants have brought back mandatory mask policies for their employees, including those who have been vaccinated.

Pia Goff, who runs the Italian restaurant Pia’s Trattoria in Gulfport, said she won’t require vaccines of her patrons, but is asking that diners stay masked on their walk to their tables and while walking around the restaurant. The restaurant’s staff were required to get vaccinated (95 percent already were) and are all masked, Goff said.

“The majority of our customer base supports our policies, the other half thinks it’s stupid,” she said. “So we decided to go with our guts. A mask will not hurt you but maybe protect someone else.”

Story by Helen Freund, Tampa Bay Times.