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Miami Light Project, et al. v. Miami-Dade County
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.
MIAMI LIGHT PROJECT, DEBRA OHANIAN,
GABLESTAGE, CUBAN CULTURAL GROUP,
a/ka/ GRUPO CULTURAL "LA MA' TEODORA,"
and HUGO CANCIO, individually and on behalf
of all others similarly situated,
Plaintiffs,
vs.
MIAMI-DADE COUNTY,
Defendant.
VERIFIED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs MIAMI LIGHT PROJECT, DEBRA OHANIAN, GABLE STAGE, CUBAN CULTURAL GROUP, a/ka/ GRUPO CULTURAL "LA MA' TEODORA," and HUGO CANCIO, individually and on behalf of all others similarly situated, sue Defendant MIAMI-DADE COUNTY and state:
NATURE OF THE CLAIM
1. This is an action for declaratory and injunctive relief brought by the Plaintiffs on their own behalf and on behalf of all others similarly situated, to declare invalid certain laws, ordinances and resolutions enacted, adopted and authorized by MIAMI-DADE COUNTY, imposing "Restrictions on Travel and Transaction of Business with Firms Doing Business with Cuba."
2. The Plaintiffs' claims are brought pursuant to Title 42 U.S.C. ? 1983, and relief is sought pursuant to that section, and 28 U.S.C. ?? 2201 and 2202, and 42 U.S.C. ? 1988. The Cuba Restrictions at issue in this case are invalid under the First and Fourteenth Amendments to the Constitution of the United States and the Foreign Commerce and Supremacy Clauses of the Constitution of the United States, and interfere with the foreign affairs power of the federal government, and are therefore unconstitutional.
JURISDICTION
3. The jurisdiction of this Court is based upon Title 28 U.S.C. ?? 1331 and 1343(3). The Plaintiffs' claims, and the claims of the class they represent, arise under the Constitution and laws of the United States.
PARTIES
4. Plaintiff MIAMI LIGHT PROJECT, INC. is a not-for-profit Florida corporation and cultural organization in Miami-Dade County, which presents live performances by innovative music, theater, and dance artists; supports the development of new work by performing artists; provides workshops for local artists; offers educational programs; and seeks to serve minority communities through an outreach effort that includes partnerships with other arts organizations, universities and social service agencies.
5. Plaintiff GABLE STAGE is a not-for-profit Florida corporation, formerly known as the Florida Shakespeare Theatre. GABLE STAGE is at the Biltmore Hotel in Coral Gables, Florida. It presents live theater performances in Miami-Dade County, Florida.
6. Plaintiff CUBAN CULTURAL GROUP, a/k/a GRUPO CULTURAL "LA MA' TEODORA," is a Florida not-for-profit corporation located in Miami-Dade County, where it presents live theater performances in the Spanish language. CUBAN CULTURAL GROUP also participates in international theater festivals at which Cuban nationals appear.
7. Plaintiff DEBRA OHANIAN is a resident of Miami Beach, Florida. She owns and operates businesses that promote and present musical events, including concerts that feature musicians who are Cuban nationals.
8. Plaintiff HUGO CANCIO is a resident of Miami-Dade County, Florida. He owns and operates a business that promotes and presents cultural events that include persons who are Cuban nationals.
9. Defendant MIAMI-DADE COUNTY is a governmental entity established by the laws of the State of Florida.
CLASS ACTION ALLEGATIONS
10. The named Plaintiffs bring this action as a class action pursuant to Rule 23(a) and (b)(2), Fed.R.Civ.P. The class consists of all persons, organizations, and entities, including non-profit and for-profit corporations, who wish to invite, present, exhibit, promote, produce, or otherwise offer educational, cultural, artistic, musical, balletic, dramatic, symphonic, operatic, cinematic or other cultural events involving, directly or indirectly, Cuban nationals, but are prohibited from doing so, or are penalized by the County for doing so, solely because of the MIAMI-DADE COUNTY Cuba Restrictions.
11. The class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims of the representative parties are typical of the claims of the class; the representative parties will fairly and adequately protect the interests of the class, and the party opposing the class ? MIAMI-DADE COUNTY ? has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or declaratory relief with respect to the class as a whole.
FACTS
12. Plaintiffs MIAMI LIGHT PROJECT, GABLE STAGE, and CUBAN CULTURAL GROUP have presented and will present cultural performances and events in Miami-Dade County, Florida. They have applied for, and received, grants from the Defendant MIAMI-DADE COUNTY, to support their cultural efforts within Miami-Dade County, Florida. They intend to apply for grants from the Defendant MIAMI-DADE COUNTY in the future. As set forth more fully below, those applications will require compliance with the County's Cuba Restrictions.
13. The cultural programs presented by MIAMI LIGHT PROJECT, GABLE STAGE, and CUBAN CULTURAL GROUP will conform with all federal laws regarding presenting artistic performances by all foreign nationals.
14. Plaintiff DEBRA OHANIAN, a concert promoter, has presented musical events at which Cuban nationals have performed. She intends to present future concerts and musical events, featuring the performances of persons who are Cuban nationals, at venues in Miami-Dade County, which will require compliance with the County's Cuba Restrictions.
15. Plaintiff HUGO CANCIO has presented concerts and a film in which Cuban nationals have performed. He intends to present future cultural events featuring the performances of persons who are Cuban nationals, at venues in Miami-Dade County, which will require compliance with the County's Cuba Restrictions.
16. Plaintiffs OHANIAN's and CANCIO's arrangements with those Cuban nationals will be in compliance with federal laws, which permit cultural exchanges with Cuban nationals. Those laws call for authorization to be secured from appropriate federal agencies, upon the applicant satisfying those agencies that the applicable laws and regulations have been complied with. See 31 C.F.R. ? 515.571 and ? 501.801(a).
17. Notwithstanding their compliance with all federal laws, Plaintiffs OHANIAN and CANCIO and the class they represent will be precluded from presenting or promoting any cultural event involving Cuban nationals at any venue in Miami-Dade County, unless she and the class comply with the Miami-Dade County Cuba Restrictions. Attached as Exhibit A is a March 8, 2000 letter from the Executive Vice-President and General Manager of the County-owned American Airlines Arena to Plaintiff OHANIAN, which establishes that the sine qua non for presenting a "Cuban act" in the American Airlines Arena is "the requirement to sign the [MIAMI-DADE COUNTY] Cuban Affidavit as part of the License Agreement for the rental of our facility."
18. The MIAMI-DADE COUNTY Cuban Affidavit requires that any "individual, organization, corporation, etc." who contracts with the County must swear that they have not:
1. engaged in the purchase, transport, importation or participation in any transaction involving merchandise that:
a. is of Cuban origin; or
b. is or has been located in or transported from or through Cuba; or
c. is made or derived in whole or in part of any article which is the growth, produce or manufacture of Cuba;
2. engaged in any transaction in which a Cuban national or the government of Cuba has any interest, or which involves property in which a Cuban national or the government of Cuba has any interest;
3. been a party to, or had an interest in any franchise, license or management agreement with a Cuban national or the government of Cuba, or which involves property in which a Cuban national or the government of Cuba has any interest;
4. had or held any investment, deposit, loan borrowing or credit arrangement or had any other financial dealings with a Cuban national or the government of Cuba, or which involves property in which a Cuban national or the government of Cuba has any interest.
5. subcontracted with, purchased supplies from, or performed billing or collection services for any person or entity that does business with Cuba as provided in "1" through "4" above;
6. traveled to Cuba in violation of U.S. travel restrictions during the ten year period preceding the due date for submittal.
19. The MIAMI-DADE COUNTY "Cuba Affidavit" required by County Resolution R-202-96 and R-206-96 is the sine qua non for obtaining any monetary cultural grants from the Defendant, including the MIAMI-DADE COUNTY Department of Cultural Affairs International Cultural Exchange (ICE) Grants Program. Attached as Exhibit B to this Complaint is a March 15, 2000 Letter Memorandum and attachments from the MIAMI-DADE COUNTY Cultural Affairs Council, which announces that applications "for grant support for international projects taking place between June 1, 2000 and May 31, 2000" must be submitted "no later than 4:00 p.m. on April 13, 2000." The Memorandum advises applicants, including members of the Plaintiff class:
It is important to note changes in County policies which now require that a properly executed and Notarized Cuba Affidavit accompany each application to a Department of Cultural Affairs Grants Program. Failure to submit the Cuba Affidavit by this application deadline shall render the application non-responsive and ineligible for further grant consideration.
Exhibit B, p. 1 (emphasis in original). The grant applications of the MIAMI LIGHT PROJECT, GABLE STAGE and the CUBAN CULTURAL GROUP and the class they represent will be foreclosed from consideration because they cannot, will not, and should not be compelled to attest to the provisions of the Cuba Affidavit in order to be considered eligible for grant consideration.
20. The MIAMI-DADE COUNTY Cuba Restrictions specifically exempt "contracts with air carriers that pertain to access to and from Miami International Airport and use thereof."
21. The MIAMI-DADE COUNTY Cuba Restrictions may be waived by the Board of County Commissioners only upon the request of a County agency:
The Board of County Commissioners may waive the requirements contained in Resolution R-202-96 and R-206-96, pursuant to R-1321-99, by an affirmative finding that the special characteristics of the purchase or the transaction is necessary for the operation of the County, or for the health, safety, welfare, economic benefit or well being of the public.
* * *
Waiver requests may only be initiated by a County agency. . . .
Amendments to Miami-Dade County Administrative Order 3-12 (Effective date March 5,
2000).
22. The County Commission's decision regarding waivers is final: "The Board of County Commissioners shall make the final decision on all waiver requests." Id.
23. But for the MIAMI-DADE COUNTY Cuba Restrictions, the Plaintiffs and members of their class would be able to present cultural events in publicly available venues in MIAMI-DADE COUNTY and would be able to be considered for and obtain MIAMI-DADE COUNTY cultural grants.
24. Plaintiff repeats and realleges paragraphs 1-23 as to each of the following claims for relief.
FIRST CLAIM FOR RELIEF
(Violation of the Foreign Affairs Power of the Federal Government)
25. The provisions of Article I, ? 8, clauses 1, 3, 4, 10, and 11; ? 9, cl. 8; Article II, ? 2, clauses 1, 2, 3; Article I, ? 10, clauses 1, 2, 3, are the foreign affairs provisions that form the foundation for the principle that the federal government has the exclusive power over foreign affairs. Power over foreign affairs is not shared by the States or its subdivisions.
26. The MIAMI-DADE COUNTY Cuba Restrictions violate the foreign affairs powers of the federal government by interfering with and imposing additional restrictions upon the foreign affairs powers exercised by the legislative and executive branches of the government of the United States.
SECOND CLAIM FOR RELIEF
(Violation of the Foreign and Interstate Commerce Clauses)
27. Article I, ? 8, cl. 1 of the Constitution grants Congress the power "to regulate Commerce with foreign Nations, and among the several states."
28. The MIAMI-DADE COUNTY Cuba Restrictions interfere with foreign commerce by imposing restrictions on cultural commerce with Cuban nationals that exceed the requirements imposed by federal law; by restricting the flow of foreign cultural commerce; by limiting cultural transactions with Cuban nationals that are specifically protected by federal law; by discriminating against foreign commerce contrary to federal laws regulating that commerce; by interfering with "the federal government's ability to `speak with one voice' in foreign affairs, because [the Cuba Affidavit] harms 'federal uniformity in an area where federal uniformity is essential.'" National Foreign Trade Council v. Natsios, 181 F.3d 38, 68 (1st Cir. 1999), cert. granted 120 S. Ct. 525, 145 L. Ed.2d 407 (Nov. 29, 1999) (argued March 22, 2000).
29. The MIAMI-DADE COUNTY Cuba Restrictions interfere with interstate commerce by impeding the ability of Plaintiffs and their class from presenting in MIAMI-DADE
COUNTY, Florida, the cultural events permitted by federal law to be presented in every other state in the United States of America.
THIRD CLAIM FOR RELIEF
(Violation of the Supremacy Clause, Art. VI, cl. 2)
30. Article VI, clause 2, of the Constitution provides:
This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
31. The MIAMI-DADE COUNTY Cuba Restrictions, by exceeding and interfering with the federal laws regulating foreign commerce with Cuban nationals, and the federal laws regulating foreign affairs powers, violates the Supremacy Clause of the Constitution of the United States.
FOURTH CLAIM FOR RELIEF
(Violation of the First Amendment)
32. The MIAMI-DADE COUNTY Cuba Restrictions, by denying access to facilities and to grants, violate the First Amendment because the Restrictions are not content neutral; they constitute a prior restraint upon the right of free association and speech; they give unbridled discretion to public officials to decide whether or not expressive activity will be permitted; and they permit County officials to discriminate by suppressing disfavored speech, film, music, art, theater, dance, educational and cultural events based on content and on the nationality of the persons whose speech, film, music, art, theater, dance or educational and cultural performances are offered by Plaintiffs and the members of their class.
FIFTH CLAIM FOR RELIEF
(Violation of the Equal Protection Clause
of the Fourteenth Amendment)
33. The MIAMI-DADE COUNTY Cuba Restrictions, by exempting contracts with air carriers that pertain to access to and from Miami International Airport from the Cuba Affidavit requirement, violates the Equal Protection Clause of the Fourteenth Amendment because the Restrictions create two classes of persons, organizations and entities that are similarly situated but are treated differently: those persons contracting with the County who need not sign the Cuba Affidavit solely because they are air carriers utilizing the Miami International Airport and those, like the Plaintiffs and their class, who are not air carriers utilizing the Miami International Airport and therefore must sign the Cuba Affidavit as a condition of contracting with the County in any way, including seeking grants from the County or utilizing venues in the County that require compliance with the Cuba Affidavit.
PRAYER FOR RELIEF
Wherefore, Plaintiffs, individually and on behalf of all others similarly situated, respectfully request that this Court:
A. Assume jurisdiction over this cause;
B. Certify this case to be a class action;
C. Declare that the MIAMI-DADE COUNTY Cuba Restrictions violate the Constitution and Laws of the United States;
D. Enjoin MIAMI-DADE COUNTY from requiring the signing of the "Cuba Affidavit" in order to present cultural events in MIAMI-DADE COUNTY facilities, or in any other way seeking to prohibit the use of MIAMI-DADE COUNTY facilities based on Cuban nationality, and enjoin MIAMI-DADE COUNTY from utilizing the "Cuba Affidavit" or other means to deny the opportunity to seek and obtain grants from the County for cultural events that may involve Cuban nationals;
E. Award the Plaintiffs reasonable attorneys' fees and costs pursuant to Title 42 U.S.C. ? 1988, and such other relief as may be just and proper.
Respectfully submitted,
BRUCE S. ROGOW, Florida Bar No. 067999
BEVERLY A. POHL, Florida Bar No. 907250
BRUCE S. ROGOW, P.A.
Broward Financial Centre
500 East Broward Blvd., Ste. 1930
Fort Lauderdale, Florida 33394
Ph: (954) 767-8909
Fax: (954) 764-1530
e-mail: bevpohl@bellsouth.net
By:
BRUCE ROGOW
By:
BEVERLY A. POHL
Cooperating Attorneys for the American Civil Liberties Union Foundation of Florida, Greater Miami Chapter
Counsel for Plaintiffs
Dated this 5th day of April , 2000.
