(The Center Square) – The Key West City Commission is going to preempt state preemption by encoding a voter-approved ballot measure nixed by the state Legislature into a city ordinance.
It may not survive legal challenges, but after city voters overwhelmingly adopted three referendums restricting cruise ship visits to the small island, “We have to have their backs,” City Commissioner Jimmy Weekley said during an emergency meeting Monday evening.
“We have to stand here and find a way in which we can defend that referendum question that was passed,” Weekley said. “And we’ve got to tell the state of Florida, you can preempt this all you want, we’re going to keep coming back with ordinances or resolutions in a way that we can get what our constituents want.”
Despite the near-certainty of lawsuits and the likelihood of retaliatory preemption by the Republican-controlled Legislature, the commission Monday directed City Attorney Shawn Smith to draft proposed ordinances encoding the three referendums into law.
Because of the pandemic, cruise ships haven’t docked in Key West since March 2020. More than 1 million cruise-ship passengers visited in 2019. The ships return in September and the commission wants Smith’s draft ordinances ready by August.
Last November, Key West voters overwhelmingly approved three referendums restricting cruise ships from flooding the small island with sudden surges of passengers.
More than 63% agreed to ban cruise ships of 1,300-or-more passengers; 61% approved a 1,500 daily cruise passenger cap; and 81% endorsed prioritizing cruise operators with the best environmental records.
During its 2021 legislative session, Florida’s Republican-controlled Legislature struck down the three referendums and passed a law preempting voters from imposing such requirements on ports because, proponents argued, cruise ships are federally-regulated and restricting passengers violates the U.S. Constitution.
Senate Bill 426, filed by Sen. Jim Boyd, R-Bradenton, and its House companion, House Bill 267, sponsored by Rep. Spencer Roach, R-North Fort Myers, both passed through three committees each before dying on second reading on chamber floors.
However, during the session’s final week, SB 426/HB 267 was inserted as an amendment into SB 1194, a transportation bill, and narrowly passed the Senate, 21-17, before being approved by the House in a partisan 75-40 vote.
After DeSantis signed SB 1194 on June 29 without comment, the Committee for Safer Cleaner Ships, which sponsored the referendums, noted on its Facebook page the “new law only applies to ballot box measures and does not prevent any port authority (in this case, the city commission) from regulating their ports.”
Smith told the city commission Monday that, by his interpretation, SB 1194 actually does allow the commission to implement the referendums through ordinances but said adopting ordinances encoding the restrictions will draw lawsuits.
“What was passed by the voters is one thing. What is sufficient for you to pass an ordinance is something different,” Smith said.
Pier B, which has operated for three decades under a contract that extends through 2025 and provides about $1.5 million in revenues – owner Mark Walsh has donated nearly $1 million to DeSantis’ reelection campaign – is among businesses that would be impacted by the restrictions.
“I think Pier B sues us. I don’t think it’s a threat. I think it’s legitimate,” Smith said. “I think it’s a breach of contract claim and an interstate commerce claim.”
Pier B representative Bart Smith said the company has invested millions in the pier, adding, “We hope and expect the city to continue to honor the agreement.”
Commissioner Samuel Kaufman said first things first.
“All of this is hypothetical until we see a drafted ordinance,” he said. “So, I’m all for it – I’m all for review, I am all for analysis.”