Pro-Israel Florida bill penalizes companies trading with Cuba

Pro-Israel Florida bill penalizes companies trading with Cuba
By Paul Guzzo | Tribune Staff
Published: October 20, 2015 | Updated: October 21, 2015 at 07:21 AM

The cold war between the U.S. and Cuba may be nearing an end but at
least one remnant survives in Florida law, threatening corporations with
penalties if they do business with the Communist nation.

No one seems to expect any enforcement of the 2012 measure, which
prohibits companies with business activities in Cuba from bidding on
state or local government contracts worth $1 million or more.

For one thing, a federal court declared the measure an unconstitutional
interference by the state in issues of international commerce that are
the purview of the federal government.

And two years later, last December, President Obama announced he is
moving the U.S. toward normalization in its relations with Cuba after
five decades of isolation.

Still, enforceable or not, the language remains. And it's getting a
fresh look this week in Tallahassee as lawmakers seek to add other
business dealings to the list of those subject to penalties from the
state — dealings where companies participate in a boycott of Israel.

Senate Bill 86, sponsored by Republican Sens. Joe Negron of Palm City
and Don Gaetz of Destin, passed a subcommittee vote Tuesday by unanimous
vote with no mention of Cuba.

The original law involved penalties for doing business with Sudan and
with the petroleum sector in Iran, nations both criticized as sponsors
of terrorism. Cuba was added later.

"The bill should have been amended following the court verdict," said
Tampa political consultant Victor DiMaio. "All of that language
pertaining to Cuba should be been taken out. We can do some business
with Cuba, but we have an unenforceable law promoting that there is a
penalty that comes with it. Why?"

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Negron confirmed to the Tribune that the Cuba language remains part of
his bill, acknowledging that is likely unenforceable.

Asked why it had not been removed, Negron said, "That is not an issue I
am addressing. I am only addressing the boycott issue for Israel."

Still, the Cuba language was left in deliberately by the staff for the
Government Oversight and Accountability Committee that drafted the bill
for the sponsors, said Katie Betta, spokeswoman for the Senate. While
the staff was aware the language had been found to be unconstitutional,
"they did not find the ruling struck down that particular provision and
for that reason Senator Negron's bill would maintain current law as it
pertains to Cuba."

The amended bill now up for discussion still defines the type of
business with Cuba that could cost a corporation any large government
contracts. It includes "acquiring, developing, maintaining, owning,
selling, possessing, leasing, or operating equipment, facilities,
personnel, products, services, personal property, real property,
military equipment, or any other apparatus of business or commerce."

In January, Obama issued an executive order allowing U.S. businesses to
export building materials and telecommunications equipment to Cuba.

Under another executive order issued in September, U.S. businesses can
also establish a physical presence in Cuba, including retail outlets or
distribution warehouses. They can also hire Cubans or U.S. citizens as
employees in the island nation.

A formal travel and trade embargo against Cuba can only be lifted by
Congress but Obama's moves are tearing big holes in it.

The Tampa area is especially eager to engage with Cuba. St. Petersburg
and Tampa are competing to host a Cuban consulate and leaders in local
business and government have traveled in a number of formal delegations
there in recent months and years.

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A reading of SB36 seems to indicate that corporations will pay a price
if they choose to do business with Cuba, said Susan MacManus, a
University of South Florida political science professor.

"It doesn't make much sense to keep it there if it has been declared
unenforceable," MacManus said. "If for no other reason, it needs to be
removed for transparency. Otherwise it is obfuscation rather than
clarification."

In the amended bill, the language regarding Cuba has even undergone some
changes for what appear to be structural reasons so it reads better in
the new context involving Israel.

A corresponding measure in the House, HB 199, sponsored by Coral Springs
Democrat Jared Moskowitz, makes no mention of Cuba or Israel, focusing
on updating the Sudan the Iran language. The House's corresponding bill
in 2012 did include the Cuba amendment.

Opposition to normalization of relations with Cuba remains strong in
parts of South Florida, and among some lawmakers from the region,
because families settled there following the Castro revolution and lost
homes and businesses.

Those who favor normalization have little to fear, though, from the
stubborn survival of the bill's language regarding Cuba, said Antonio
Martinez II, a New York attorney specializing in Latin America relations.

"The bill is still unconstitutional because it seeks to impose a foreign
policy on Cuba different from the rest of the country," Martinez said in
an email. "The state of Florida cannot impose its own sanctions regime
on a country that is even stricter than the federal government's. The
U.S. Treasury Office of Foreign Assets Control administers and enforces
our sanctions laws."

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Coral Gables-based Odebrecht Construction took the 2012 amendment to
federal court.

Its Brazilian parent company Odebrecht SA had foreign subsidiaries
involved in a Cuban construction project, which under the Cuba amendment
would have blocked it from bidding on Florida Department of
Transportation contracts worth up to $1.8 billion.

The 11th Circuit Court of Appeals in Atlanta found the measure
unconstitutional in May 2013.

"The Cuba Amendment conflicts directly with the extensive and highly
calibrated federal regime of sanctions against Cuba promulgated by the
legislative and executive branches over almost 50 years," the court's
ruling reads. "The Supremacy Clause of the Constitution 'provides a
clear rule that federal law shall be the supreme law of the land.'

It continues, "The Amendment also overrides the nuances of the federal
law and weakens the president's ability 'to speak for the nation with
one voice in dealing' with Cuba."

The Florida Department of Transportation agreed the following August to
enter a permanent injunction against enforcing provisions of the amendment.

Florida has a history of state laws that contradict with national ones
when it comes to Cuba.

A 1996 Florida statute prohibits state agency personnel from traveling
to a country in the Western Hemisphere with which the U.S. lacks
diplomatic relations.

A statute enacted in 2006 prohibits the use of state university funding
for activities related to travel to countries that are designated by the
U.S. State Department as a sponsor of terrorism.

Both measures were written with Cuba in mind, their proponents said, but
neither applies to the island nation now that diplomatic relations are
restored and it has been taken off the terror list.

Now that Senate Bill 86 is being worked on, attorney Martinez said, the
Florida Senate should take the opportunity to remove the Cuban language.

"There is overwhelming majority support to end the embargo and both
Americans and Cubans support the normalization process that began on
December 17, 2014," he said. "The Florida Senate should recognize this
instead of ignoring it."

pguzzo@tampatrib.com

Source: Pro-Israel Florida bill penalizes companies trading with Cuba |
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