Posted on Wednesday, 03.21.12
Miami-Dade advised not to follow new Fla. law restricting hiring of
businesses linked to Cuba
County Attorney Robert Cuevas concluded that the new state law regarding
businesses linked to Cuba conflicts with federal law and should be
"inoperative" in Miami-Dade.
By Patricia Mazzei
pmazzei@MiamiHerald.com
Miami-Dade should not enforce a new state law that prohibits the hiring
of companies with business ties to Cuba because it conflicts with
federal law, according to an opinion issued Wednesday by the county's
chief attorney.
Robert Cuevas concluded that the terms of Florida House Bill 959 that
refer to Cuba cannot be enforced until the federal government authorizes
states to enact such procurement limitations, or a federal court finds
the law constitutional.
He based his opinion on legal precedent — including federal rulings in
Florida and Miami-Dade cases — holding that state and local governments
cannot interfere with the federal government's ability to set foreign
policy, echoing critics of the law who have called it unconstitutional.
Federal law already prohibits American companies from doing business
with Cuba, via the U.S. trade embargo on the island. The new state law,
among other things, prevents local governments from hiring foreign firms
that work in Cuba, directly or through affiliates, for contracts worth
at least $1 million.
It appears pointed at one of Miami-Dade's largest contractors: Odebrecht
USA, the Coral Gables-based subsidiary of the giant Brazilian
conglomerate. Another subsidiary of the firm is performing major
upgrades to the Port of Mariel in Cuba.
The law, which was sponsored by Miami-Dade legislators and received
near-unanimous support in Tallahassee, is awaiting Gov. Rick Scott's
signature or veto. The governor could also let the legislation go into
effect July 1 without signing it.
Even if the bill is enacted, Cuevas wrote, the county would not be
breaking state law by ignoring it. That's because the law includes a
clause saying the statute "becomes inoperative" if it violates federal law.
The statute already conflicts with federal court rulings at the national
and local level, Cuevas wrote, so the county cannot follow it.
"If the County were to violate federal law in this area, it would be
exposed to liability under federal civil rights laws," he wrote.
The bill's backers, however, say it should be up to a judge — not a
county attorney — to decide whether state law violates federal law.
"That's not their decision, that's a judge's decision," said lawyer
Mauricio Claver-Carone, director of the pro-embargo U.S.-Cuba Democracy
Political Action Committee in Washington D.C. that has been building
opposition to Odebrecht. "If Miami-Dade County wants to take it to
court, that's their prerogative."The clause Cuevas cited, Claver-Carone
said, is intended to ensure that the new state law does not run afoul of
any future changes to federal law. "It's consistent with federal law,"
he said.
Cuevas' opinion cited three federal cases where the courts have thrown
out past efforts to restrict business dealings with companies tied to
repressive regimes. Two of the cases relate specifically to Florida and
Miami-Dade.
In 2008, the courts struck down a Florida law imposing restrictions on
firms providing travel to Cuba. In 2000, a federal judge ruled the
county could not require bidders to submit affidavits affirming that
they do not do business with the island.
The county attorney's office has based past opinions on the matter on
those cases — including an opinion last June relating to future
contracts with Odebrecht in which Cuevas wrote that federal law is
binding over foreign trade matters.
Odebrecht, which has been in Miami for more than two decades, has taken
part in most of the region's biggest projects, from the stadium at
Florida International University to the North Terminal at Miami
International Airport.
For more than a year, Odebrecht has been negotiating with the county's
aviation department to build Airport City, a proposed $700-million
complex that would feature two hotels plus office and retail space at
MIA. Commissioners would eventually have to approve the project, which
is under Federal Aviation Administration review.
In addition to Cuba, the new law also restricts the hiring of companies
that do business with Syria. State law previously imposed limitations on
hiring firms that work in Iran and Sudan. The four countries comprise
the federal government's list of state sponsors of terrorism.
Cuevas said the federal government expressly authorizes local government
procurement limitations relating to Iran and Sudan, but not to other
countries.
Mayor Carlos Gimenez and Commission Chairman Joe Martinez declined to
comment Wednesday. Their spokeswomen said the officials had not yet had
time to digest Cuevas' memo.
Before Cuevas released his final opinion, a draft circulating in County
Hall prompted dismay from commissioners who favor the Cuba restrictions.
From the dais Tuesday, Commissioner Esteban Bovo called upon the
governor to sign the law — and on the county to follow it.
"The last time I checked, Miami-Dade County is in the state of Florida,
and I would expect that we would comply with the law," he said. "This is
something that is very, very serious, and I would strongly encourage
that the governor sign this legislation into law."
Chairman Martinez told commissioners that they will have to discuss the
county's interpretation of the law in more depth at a future meeting.
"I always thought that we had to abide by a state law, but apparently
they're preempted by a federal law," he said.
Though Martinez did not mention the project by name at Tuesday's
meeting, he appeared to lament that the county attorney's position could
allow Miami-Dade to hire Odebrecht to build Airport City. He has
previously signaled he does not want to hire the firm.
"There are things coming up in the future that I thought this would have
addressed," Martinez said. "But apparently it does not."
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