Abc Charters, Inc. v. Bronson

• Decision Date: 01 October 2008
• Docket Number: Case No. 08-21865-CIV.
• Parties: ABC CHARTERS, INC., a Florida Corporation; Marazul Charters, Inc., a Florida Corporation; Damuji Services Inc., a Florida Corporation; Wilson International Services, Inc., a Florida Corporation; Cuba Travel Services, Inc., a California Corporation; Celimar Travel Services, Inc., a Florida Corporation; Paradise International, Inc., a Florida Corporation; Cojimar Express Services, Inc., a Florida Corporation; Cuba Express, Inc., a Florida Corporation; Cubamerica Immigration Services Corp., a Florida Corporation; Havana Express Inc., a Florida Corporation; Tellez's Tour and Travel Agency, Inc., a Florida Corporation, Plaintiffs, v. Charles H. BRONSON in his official capacity as Commissioner of the Florida Department of Agriculture and Consumer Services, Defendant.
• Court: U.S. District Court — Southern District of Florida

591 F.Supp.2d 1272

ABC CHARTERS, INC., a Florida Corporation; Marazul Charters, Inc., a Florida Corporation; Damuji Services Inc., a Florida Corporation; Wilson International Services, Inc., a Florida Corporation; Cuba Travel Services, Inc., a California Corporation; Celimar Travel Services, Inc., a Florida Corporation; Paradise International, Inc., a Florida Corporation; Cojimar Express Services, Inc., a Florida Corporation; Cuba Express, Inc., a Florida Corporation; Cubamerica Immigration Services Corp., a Florida Corporation; Havana Express Inc., a Florida Corporation; Tellez's Tour and Travel Agency, Inc., a Florida Corporation, Plaintiffs, v. Charles H. BRONSON in his official capacity as Commissioner of the Florida Department of Agriculture and Consumer Services, Defendant.

Case No. 08-21865-CIV.

United States District Court, S.D. Florida.

October 1, 2008.

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Helena Marie Tetzeli, Ira Jay Kurzban, Steven Murray Weinger, Kurzban Kurzban Weinger & Tetzeli, Miami, FL, for Plaintiffs.

Eric Hillard Miller, Louis E. Stolba, Raymond C. Conklin, Department of Agriculture & Consumer Services, Leonard Michael Collins, Jeremiah M. Hawkes, Florida House of Representatives, Tallahassee, FL, Catherine Magdalena Rodriguez, Levey Filler Rodriguez Kelso & De Bianchi LLP, Miami, FL, Daniel R. Zim, Paul M. Ruden, American Society of Travel Agents Inc., Alexandria, VA, for Defendant.

ORDER DENYING MOTION TO DISMISS AND GRANTING PRELIMINARY INJUNCTION; AMENDING ORDER REGARDING PROTECTIVE ORDER

ALAN S. GOLD, District Judge.

I. INTRODUCTION

THIS MATTER is before the Court on Plaintiffs' Motion for Preliminary Injunction [DE 3] and on the Defendant's Motion to Dismiss for Lack of Jurisdiction and Lack of Standing [DE 23, 24]. In their complaint and motions, the Plaintiffs challenge the constitutionality of amendments to the Florida Sellers of Travel Act, Florida Statutes, Chapter 559, enacted as SB 1310 ("An Act Relating to Sellers of Travel") effective July 1, 2008 ("Travel Act Amendments")¹ and seek declaratory and injunctive relief to enjoin enforcement of the Travel Act Amendments by state officials. The Travel Act Amendments, among other things, (1) automatically make any violation of federal law by the Plaintiffs a third-degree felony under Florida law; (2) require companies providing lawful travel related services to Cuba to post a bond in an amount ranging from $100,000 to $250,000 and allows the Defendant to use the bond to pay its own investigatory expenses without any limits to the exposure under the bond; (3) create two classes of travel providers subject to a vastly different standards (i.e. those doing business with Cuba and other "terrorist states" and those who do not do business with Cuba); and (4) require disclosure and identification by Plaintiffs of each company with whom each Plaintiff does business and make that information available to the public and Plaintiffs' competitors. Plaintiffs argue that the Travel Act Amendments violate the following provisions of the United States Constitution: the Supremacy Clause, the Foreign Affairs Power, the Foreign Commerce Clause, and the Interstate Commerce Clause. Plaintiffs also claim that the Travel Act Amendments further violate their due process rights, constitute a taking of property in violation of the Fifth Amendment, constitute a violation of the Eighth Amendment by constituting penalties that are grossly disproportionate to the severity of the offense, and violate the Right to Travel. The Defendant denies these claims and moves to dismiss for lack of jurisdiction and standing to sue. The Defendant argue that this Court is prohibited from hearing the matter under the Eleventh Amendment and Article III of the United States Constitution [DE 23 and 24].

This matter is also before the Court on Non-Party Florida House of Representatives' (the "House") Expedited Motion for a Protective Order [DE 33]. As a preliminary matter, I granted the Motion on August 14, 2008 [DE 35], and pursuant to the hearing held on August 27, 2008, I continued the protective order without prejudice [DE 50]. In that Order, I reserved ruling on the House's Motion until the hearing on the Motion for Preliminary Injunction. For reasons set forth in this Order, Plaintiffs are permitted to renew their request to depose Representative Rivera, consistent with this Order. In the event the Plaintiffs make such a request, I will further consider the Motion for Protective Order.

Having heard oral argument on Defendant's Motion to Dismiss, and following an evidentiary hearing on the Motion for Preliminary Injunction on Friday, September 25, 2008,² I deny the Motion to Dismiss and grant a preliminary injunction in favor of the Plaintiffs, for the reasons set forth in this Order.³ While the primary issue before me on this Preliminary Injunction hearing is Plaintiffs' likelihood of success on the merits, it is with significant concern that I note that the Travel Act Amendments-which include extraordinary expensive registration and bonding requirements, exorbitant fines and a felony conviction for those who fail to comply with the law-constitute little more than an attempt to impose economic sanctions on travel to designated foreign governments, particularly the Republic of Cuba. But the right and power to impose such sanctions, and to establish foreign policy, remains, under our Federal Constitution, solely within the exclusive domain of the Congress of the United States and the President, and not within the aegis of the State of Florida under the guise of consumer protection. For reasons stated in this Order, I find a likelihood of success on the merits and convert the temporary restraining order into a preliminary injunction. I further amend my prior Order regarding the House's Motion for Protective Order as it relates to Representative David Rivera.

II. THE PARTIES

The Plaintiffs are travel agencies and charter companies providing services to individuals traveling to Cuba or who wish to send humanitarian aid or family remittances to Cuba. The Plaintiffs are licensed by the federal government to provide these travel related services to Cuba. Some of the Plaintiffs act as travel agents and sell tickets for flights to Cuba to individuals wishing to travel there, or send packages and humanitarian aid to families of Cuban Americans. Some of the Plaintiffs charter aircraft to fly individuals to Cuba. The charterers, called charter service providers, work with the travel agencies (referred to as "Travel Service Providers" or "TSP's" under federal regulations), or are themselves travel agencies, to provide lawful passage between Cuba and the United States.

The Plaintiffs' customers live in Florida and in other States and travel here before boarding flights to Cuba.⁴ All of the Plaintiff companies are owned by Cuban-Americans.

The Defendant, CHARLES H. BROSON, is sued by the Plaintiffs in his official capacity as the Commissioner of the Florida Department of Agriculture and Consumer Services, a government entity established under Florida law. Mr. Bronson, as Commissioner, is charged with enforcement and implementation of the Travel Act, including the Amendments to the Travel Act.

III. JURISDICTION

The Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 to redress their claimed deprivation of rights, privileges, and immunities secured by the Constitution and the laws of the United States and under the Fourteenth Amendment to the U.S. Constitution. Plaintiffs sufficiently allege jurisdiction by claiming that the state law violates the First, Fifth, Eight Amendments and the Equal Protection and Due-Process guarantees of the Fourteenth Amendment of the U.S. Constitution and the Supremacy and Foreign Commerce Clauses. I have jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) and 28 U.S.C. § 1331.

IV. FACTUAL BACKGROUND

A. Amendments to the Florida Sellers of Travel Act.

The amended Travel Act, inter alia:

a. Requires sellers of travel to Cuba to post $100,000 or $250,000 bonds, but requires companies engaged in travel to "non-terrorist designated states" to post only a $25,000 bond even if the business that provides travel related services to Cuba has a better consumer record (F.S. § 559.929(1)(b),(c)).

b. Allows the state to use the bond funds to investigate any seller of travel related services to Cuba but does not allow the state to do the same for sellers of travel related services to other countries (F.S. § 559.929(2)(b)).

c. Gives priority on the bond funds to the state over consumers when the travel is Cuba-related but does not do the same for bonds posted by travel agencies not providing Cubarelated travel services (F.S. § 559.929(2)(a)-(c)).

d. Denies a seller of travel to Cuba a waiver or a reduction in their bonds in the future, despite having a good consumer record, while allowing sellers of travel to other countries to have their bond reduced or waived. (F.S. § 559.929(5)).

e. Bars sellers of travel services, including those selling travel to Cuba from posting a letter of credit (which is allowed by federal law), in lieu of a bond. (F.S. § 559.929).⁵

f. Makes any violation of "any state or federal law" restricting or prohibiting commerce with a designated "terrorist state", as well as violations of "this part" ... "which violation directly or indirectly pertains to an offer to sell, at wholesale or retail, prearranged travel, tourist related services or tour-guide services for individuals or groups directly to any terrorist state and which originate in Florida ..." (F.S.559.937(2)), a third degree felony.⁶ In contrast, sellers of travel to countries other than Cuba are subject only to misdemeanor charges for the same violations of the Travel Act.

g. Requires sellers of travel related...