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Order in the Cuba Ordinance Case Denying Defendant's Motion to Dismiss
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 00-1281-CIV-MORENO
MIAMI LIGHT PROJECT; DEBRA
OHANIAN; GABLE STAGE; CUBAN
CULTURAL GROUP a/k/a GRUPO
CULTURAL "LA MA' TEODORA;" and
HUGO CANCIO, individually and on
behalf of all other similarly situated,
Plaintiffs,
vs.
MIAMI-DADE COUNTY,
Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
I. INTRODUCTION
This cause comes before the court following a hearing on
Defendant's Motion to Dismiss. Plaintiffs, a group
of cultural organizations and individuals involved in the
production of theater, art, music and dance performances,
are challenging the constitutionality of Miami-Dade County
Resolution Nos. R-202-96, R-206-96, and Administrative Order
No. 3-12. These ordinances, commonly known as the
"Cuba Affidavit," prohibit the County from contracting
with parties that do business with Cuba or Cuban nationals;
or whose principals have unlawfully traveled to Cuba within
the last decade. Defendant has filed a motion to dismiss
challenging Plaintiffs' standing to file suit. For the reasons
stated more fully below Defendant's motion to dismiss is
DENIED, as the court finds that Plaintiffs have standing.
II. BACKGROUND
A. The Cuba Affidavit
In 1996, Miami-Dade County recognizing that "the Country of Cuba continues to maintain a policy of denying common freedom of speech, press, assembly, religion, and human rights to the majority of their citizens," passed two resolutions restricting the transaction of business with firms doing business with Cuba. (A.O. 3-12). Under these resolutions anyone wishing to contract or otherwise do business with the County must sign the "Cuba Affidavit."
The "Cuba Affidavit" requires the signatory to swear that he has not engaged in any transaction involving Cuba, Cuban products or Cuban nationals. Additionally, the affiant must swear that he has not subcontracted with any party who engaged in any transaction involving Cuba, Cuban products or Cuban nationals. Lastly, the "Cuba Affidavit" requires the affiant to swear that he has not unlawfully traveled to Cuba in the last ten years.
B. The Plaintiffs Challenge
Plaintiffs are a group of organizations and individuals, both not-for-profit and for-profit, who offer educational, artistic, musical, balletic, cinematic or other cultural events directly or indirectly involving Cuban nationals. Plaintiffs challenge the "Cuba Affidavit" ordinance on-its-face and as it applies to prohibit the use of County venues and to preclude the issuance of grants by the County's Department of Cultural Affairs, International Cultural Exchange Grants Program, to organizations and individuals that refuse to sign the "Cuba Affidavit."
It is uncontested that absent submission of the "Cuba Affidavit," an individual or organization would be unable to stage events at County venues, such as the American Airlines Arena, or be considered for County sponsored cultural grants. Applying for a grant without submitting the required Cuba Affidavit would be an exercise in futility. The grant application form clearly states in large bold type that "[f]ailure to submit the Cuba Affidavit... shall render the [grant] application non-responsive and ineligible for consideration. Complaint Exhibit B-3.
Plaintiffs claim the "Cuba Affidavit" requirement violates the following constitutional provisions: the federal foreign affairs power; the foreign and interstate commerce clauses; the supremacy clause; the first amendment as to speech and association based on nationality; and the equal protection clause.
III. STANDING
This court is a court of limited jurisdiction with the power to review only concrete controversies brought by a plaintiff with standing to raise the issue he seeks to have the court decide. Wirth v. Selding, 422 U.S. 490, 498 (1975). The doctrine of standing serves to "identify those disputes which are appropriately resolved through the judicial process." Lujan v. Defenders of Wildlife, 504 U.S. 559, 560 (1992). A party has standing to sue in federal court upon a showing that: (1) the plaintiff suffered "injury in fact" which is an invasion of a legally protected interest that is both concrete and particularized and "actual or imminent, not 'conjectural' or 'hypothetical;'" (2) there is a causal connection between the injury and the conduct complained of; and (3) plaintiff's injury can be"redressed by a favorable decision." Id.
The County claims that Plaintiffs lack standing to challenge the "Cuba Affidavit" because no specific Cuban artist, with a visa and license, has been named in any grant application or venue reservation. Furthermore, the County claims that no grant application has been denied for failure to submit a Cuba Affidavit. This, according to the County, makes the likelihood of injury too speculative to constitute injury-in-fact.
In Northeastern Florida Chapter of The Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993), a general contractors association had standing to challenge a minority set-aside program even though it failed to show that its members would have received city contracts but for the challenged ordinance. In the equal protection context, the Court held that to establish standing a party "need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis." Id. at 666.
The County relies on Lofton v. Butterworth, 2000 WL 519123 (S.D. Fla. April 21, 2000)(King, J.), a case challenging Florida's statute barring adoptions by homosexuals. In that case, plaintiffs were dismissed for lack of standing because they did not actually make an adoption application to the State of Florida. The court relying on Northeastern found that plaintiffs failed to allege that they were ready, willing and able to adopt and required plaintiffs to actually apply for adoption prior to filing suit, though it was sure to be denied. Such a requirement was not deemed an "exercise in futility" because it would establish plaintiffs' desire to actually adopt a child.
Plaintiffs have established that but for the submission of the "Cuba Affidavit" they are ready, willing, and able to apply for a grant. Plaintiffs, Miami Light Project, Gables Stage, and Cuban Cultural Group a/k/a Grupo Cultural "La Ma' Teodora," have in the past qualified for and received grants from the County's Department of Cultural Affairs. Additionally, Plaintiff, Miami Light Project, has submitted an application to the Florida Division of Cultural Affairs for its Contemporary Performance Series and is currently seeking to submit a similar grant application to the County. Plaintiffs are actively seeking funding for their ongoing and future programs that qualify for County grants. To require the submission and certain denial of a grant application would indeed be an exercise in futility.
Furthermore, the County is mistaken in claiming that Plaintiffs must demonstrate "that they have authorization from the applicable federal agencies for a Cuban national artist to attend a specific future cultural event." Motion to Dismiss p. 3. The Cuba Affidavit prohibits significantly more than the sponsorship of Cuban artists or organization promoting them. For example, if twenty years ago an organization without any public funding legally hired a Cuban singer to perform at an event, such an organization would forever be barred from in any way contracting with the County.
IV. CONCLUSION
Plaintiffs' challenge is in no way hypothetical. To require the submission and rejection of a grant application would be an otiose undertaking. Unlike the Lofton plaintiffs, the instant plaintiffs are ready, willing, and able to submit grant applications, which but for the Cuba Affidavit would be considered by the County. The instant case is analogous to Northeastern and accordingly Plaintiffs have met the burden of establishing standing.
It is therefore,
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss (D.E. No. 4), filed on April 28, 2000 is DENIED. Defendant shall have until May 31, 2000 to file an Answer to the Complaint.
DONE AND ORDERED in Chambers at Miami, Florida, this 16th
day of May, 2000.
___________________________
FEDERICO A. MORENO
UNITED STATES DISTRICT JUDGE
copies provided:
Bruce S. Rogow, Esq.
Beverly A. Pohl, Esq.
BRUCE S. ROGOW, P.A.
1930 Broward Financial Center
500 East Broward Boulevard
Fort Lauderdale, FL 33394
Robert A. Cuevas, Jr., Esq.
MIAMI-DADE COUNTY ATTORNEY
2810 Stephen P. Clark Center
111 Northwest First Street
Miami, FL 33128-1993
