Key West ponders response to Florida preemption nixing voter-approved ship restrictions


Last November, Key West voters overwhelmingly approved three referendums restricting cruise ships from flooding the small island with sudden surges of passengers to protect the Keys’ sensitive ecosystem and water quality.

More than 63% agreed to ban cruise ships of 1,300-or-more passengers; 61% approved a 1,500 daily cap on cruise passengers; 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.

But the city of Key West is pondering a challenge the state’s preemption — and it may not need to do so in a protected, expensive legal battle.

It can simply encode the three approved referendums as ordinances, maintains the Committee for Safer Cleaner Ships, which sponsored the referendums.

According to a post on the group’s 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.”

Key West Mayor Teri Johnston said the law is, indeed, open to interpretation. She has called a special City Commission meeting Monday evening to hear from City Attorney Shawn Smith on how the city will proceed.

“Every one of the city commissioners right down the line said yes, we’re here to support that charter amendment,” Johnston told Florida Phoenix Friday. “What we’re going to figure out Monday night is how we can do that.”

Because of the COVID-19 pandemic, no cruise ship has docked in Key West since March 2020. More than 1 million cruise ship passengers visited the island in 2019. Cruise ships are expected to return in September.

Despite the cruise industry’s absence, Key West hotels and vacation rentals are at 90% occupancy rates, Johnson said, with sales tax revenues this year expected to top 2019.

“And that is without not only cruise ship passengers, that’s without many international travelers and without holding major festivals like Fantasy Fest and the boat races,” she said.

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, initially called for preempting local regulation in all 15 Florida seaports but was scaled back to only preclude Pensacola, Panama City, Key West and St. Petersburg.

Both bills 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, an unrelated transportation bill that was narrowly passed the Senate, 21-17, and adopted by the House in a partisan 75-40 vote.

DeSantis signed SB 1194 in law on June 29 without comment.

Preemption has been a theme in Florida for years. The 2019 legislative session generated nearly 50 proposed preemption bills and the 2020 session produced three dozen more, including the Occupational Freedom & Opportunity Act and a bill blocking local governments from increasing impact fees.

The trend continued in 2021 with a wave of preemption bills, including HB 919, which would preempt cities from restricting which forms of energy can be provided and HB 735, which “prohibits local governments from requiring a license for a person whose job scope does not substantially correspond to that of a contractor or journeyman type licensed” by the state’s Construction Industry Licensing Board and the Florida Department of Business & Professional Regulation (DBPR).

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