Miami-Dade advised not to follow new Fla. law restricting hiring of businesses linked to Cuba

By Patricia Mazzei

From The Miami Herald

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.

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