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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

KEY WEST CIVIL DIVISION

CASE NO.: 4:20-CV-10076-JLK

KEY WEST BAR PILOTS ASSOCIATION 

and PIER B DEVELOPMENT CORP., 

a Florida Corporation,

Plaintiff/Intervenor,

v.

R. JOYCE GRIFFIN, in her official capacity 

as SUPERVISOR OF ELECTIONS FOR 

MONROE COUNTY, FLORIDA, the CITY 

OF KEY WEST, a municipal corporation of the 

State of Florida, and KEY WEST 

COMMITTEE FOR SAFER CLEANER 

SHIPS, INC., a Florida non-profit corporation

Defendants.

_______________________________________/

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

AND MEMORANDUM IN SUPPORT OF MOTION

I. MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56, Federal Rules of Civil Procedure and Local Rule 56.1, the Key West 

Bar Pilots Association and Plaintiff Intervenor Pier B Development Corp., move for summary 

judgment declaring that the three proposed Key West City Charter Initiatives (the “Initiatives”)

contravene federal constitutional law and Florida statutory law precluding their inclusion on the 

forthcoming November election ballot. 

The Amended Complaint (DE 6), the Intervenor Complaint (DE 31-4), and the Answer of 

the Defendants’ (DE 14, DE 29, DE 30, DE 35), establish the undisputed facts. A separately filed 

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Statement of Material Facts (“SOF”) sets forth the undisputed facts. Two of the Defendants have 

offered no affirmative defenses. The third Defendant, The Key West Committee for Safer Cleaner 

Ships, Inc., has offered affirmative defenses, none of which are legally sufficient to preclude 

summary judgment. 

There are no “genuine issue[s] of material fact[s].” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 247-48 (1986). Summary judgment is appropriate. As we show below, the three 

Initiatives which seek to (1) limit the number of persons (passengers and crew) on all cruise ships 

docking in Key West; (2) limit the total number of persons (passengers and crew) who may daily 

disembark from all cruise ships docking in Key West; and (3) impose a hierarchy of environmental 

and health standards on cruise ships which have met all federal standards allowing them to engage 

in maritime commerce, are preempted by federal law. “[T]he Union was formed with the very 

definite design of freeing maritime commerce from intolerable restrictions incident to such [local] 

control.” Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674-75 (1982). 

The Initiatives also violate Florida law. Supplemental jurisdiction (28 U.S.C. §1367), 

provides the basis for the Court to strike these Initiatives from the ballot because they seek to alter 

the property rights guaranteed to the private property owner, Pier B, by a Development Order. 

Florida statutory and case law is clear that an individual’s property rights are not subject to the 

will of the voters.1 Florida statute section 163.3167(8)(a) provides that “[a]n initiative or 

referendum process in regard to any development order is prohibited.” Mullen v. Bal Harbor 

Village, 241 So.3d 949, 956 (Fla. 3d DCA 2018) confirms that the statute prohibits any attempt to 

subject an individual’s property rights to the will of the voters.

 1 As to the Intervenor, Pier B, the Initiatives can be struck without regard to the federal preemption 

arguments. As Pier B is the only privately owned of the three cruise ship docks in Key West, the 

constitutional issues must be addressed in order to provide complete relief.

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The Supervisor of Elections should be precluded from placing the Initiatives on the ballot. 

II. STANDARD FOR PRE-BALLOT CHALLENGE

On a pre-ballot challenge, this Court may only determine if challenged initiatives are 

(1) “facially constitutional” and (2) “within the powers of the enacting body.” Gaines v. City of 

Orlando, 450 So. 2d 1174, 1178 (Fla. 5th DCA 1984). “The rationale of that rule [for pre-ballot 

challenges] is that this type of question (as opposed to a political question) may be determined in 

advance of the election in order to preclude or forestall the possible expenditure of funds in a 

useless act should the ordinance ultimately be held unconstitutional.” W. Palm Beach Ass'n of 

Firefighters, Local Union 727 v. Bd. of City Comm'rs of City of W. Palm Beach, 448 So. 2d 1212, 

1214 (Fla. 4th DCA 1984). In addition to facial unconstitutionality, “[o]ne impediment to 

constitutionally derived legislative powers of municipalities occurs when the municipality enacts 

ordinances which conflict with state law.” Id. (quoting City of Miami Beach v. Rocio Corp., 404 

So. 2d 1066 (Fla. 3d DCA 1981)). The Initiatives here, facially, fail on both constitutional and 

state law grounds and, as we show below, are not fit to be on an election ballot. 

III. MEMORANDUM OF LAW

A. The Laws of the United States Preempt the Initiatives

The laws of the United States “shall be supreme Law of the Land.”2 U.S. CONST., Art. VI.

State or local laws that “interfere with, or are contrary to, federal laws” are invalid. 

Hillsborough Cty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) (quoting Gibbons v. 

Ogden, 22 U.S. 1, 9 (1824); see also Bailey v. Rocky Mountain Holdings, LLC, 136 F. Supp. 1376, 

 2 The Supremacy Clause is the Constitutional basis for the doctrine of federal preemption. 

See Young v. Coloma-Agaran, No. CIV. 00-00774HG-BMK, 2001 WL 1677259, at *4 (D. Haw. 

Dec. 27, 2001) (citing Int’l Ass’n of Indep. Tank Owners (Intertanko) v. Locke, 148 F.3d 1053, 

1058-59 (9th Cir. 1998), aff’d in part United States v. Locke, 529 U.S. 89 (2000), and Fidelity Fed. 

Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152 (1982)).

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1379 (S.D. Fla. 2015), aff’d, 889 F.3d 1259 (11th Cir. 2018). A substantial body of federal law 

controls and regulates the operations of cruise vessels serving the interstate and foreign commerce 

of the United States. These vessels are subject to federal inspection and supervision in a variety 

of areas, including construction standards, environmental protection requirements, operational 

procedures, security measures, and health and safety requirements. 

There is a federal national interest in maritime commerce that can only “. . . be fully 

vindicated if all operators of vessels on navigable waters are subject to uniform rules of conduct.” 

Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674-75 (1982). The necessity of uniformity of 

regulation and standards is obvious:

The confusion and difficulty, if vessels were compelled to comply with the local 

statutes at every port, are not difficult to see. Of course, some within the states 

might prefer local rules; but the Union was formed with the very definite design 

of freeing maritime commerce from intolerable restrictions incident to such 

control. The subject is national. Local interests must yield to the common 

welfare. The Constitution is supreme.

3

This Court has recognized that “there are three types of preemption: express preemption, 

field preemption, and conflict preemption.” In re Checking Account Overdraft Litig.,

880 F. Supp. 2d 1290, 1295 (S.D. Fla. 2012) (King, J.) (citing Baptista v. JPMorgan Chase Bank, 

N.A. 640 F.3d 1194, 1197 (11th Cir. 2011). “Express preemption occurs where federal law 

expressly so provides.” Id. (citing Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 604-05 (1991). 

“Field preemption occurs where federal law implies an intent to supersede state law in a given 

area.” Id. (internal quotation marks omitted). “Conflict preemption occurs where federal and state 

law actually conflict, whether because state law makes compliance with federal law impossible or 

because state law stands as an obstacle to the accomplishment and execution of federal purposes.”

 

3 State of Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924). (emphasis supplied). 

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Id. (internal quotation marks omitted). This Court has observed that “regulations, not just statutes, 

may preempt state law.” Id. (citing Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 

153 (1982) (“Federal regulations have no less preemptive effect than federal statutes.”).

1. Courts Have Consistently Held That Federal Maritime Laws & 

Regulations Preempt Conflicting State & Local Laws

The Constitution and a wide array of federal statutes recognize the primacy and virtual 

exclusivity of federal, as opposed to state and local, authority over maritime activities. 

See United States v. Locke, 529 U.S. 89, 108 (2000) (“Congress has legislated in the field from the 

earliest days of the Republic, creating an extensive federal statutory and regulatory scheme.”). 

In maritime law, there is “a history of significant federal presence” and, thus, “there is no 

beginning assumption that concurrent regulation by the State is a valid exercise of its police 

powers.” Id. Rather, the issue is “whether the local laws in question are consistent with the federal 

statutory structure, which has as one of its objectives a uniformity of regulation for maritime 

commerce.” Id. 

Locke addressed the issue of whether laws regulating oil tankers adopted by the state of 

Washington could stand despite the “comprehensive federal regulatory scheme governing oil 

tankers.” Id. at 94. Failure to comply with the Washington rules exposed vessel operators to 

sanctions, which included “statutory penalties, restrictions of the vessel’s operations in state 

waters, and a denial of entry into state waters.” Id.

“The authority of Congress to regulate interstate navigation, without embarrassment from 

intervention of the separate States and resulting difficulties with foreign nations, was cited in the 

Federalist Papers as one of the reasons for adopting the Constitution.” Id. (citing Federalist

Nos. 44, 12, 64). “In 1789, the First Congress enacted a law by which vessels with a federal 

certificate were entitled to ‘the benefits granted by any law of the United States.’” Id. (citing Act 

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of Sept. 1, 1789, Ch. 11, § 1, 1 Stat. 55). The emergence of maritime transport by steamship 

“resulted in further federal licensing requirements enacted...to enhance the safety of crew 

members and passengers.” Id. (citing Act of July 7, 1838, Ch. 191, 5 Stat. 304; Act of Mar. 3, 

1843, Ch. 94, 5 Stat. 626). “In 1871, Congress enacted a comprehensive scheme of regulation for 

steam powered vessels, including provisions for licensing captains, chief mates, engineers, and 

pilots.” Id. (citing Act of Feb. 28, 1871, Ch. 100, 16 Stat. 440). Locke found state-level disruption 

of a comprehensive federal maritime interest to be constitutionally repugnant, and a municipal 

effort to restrict interstate and foreign maritime commerce is even more incompatible with a 

uniform federal system. 

Where Congress has acted, the Supreme Court has had “little difficulty in finding state 

vessel requirements were preempted by federal laws which governed the certification of vessels 

and standards of operation.” Id. at 100. The Supreme Court has held that the federal license held 

by a vessel contained “the only guards and restraints, which Congress has seen fit to annex 

to the privileges of ships and vessels engaging in the coasting trade.” Id. at 100 (citing Sinnot v. 

Davenport, 22 How. 227, 241) (1859). In such a circumstance, “state laws on the subject must 

yield: ‘in every such case, the act of Congress or treaty is supreme; and the law of the State, though 

enacted in the exercise of powers not controverted, must yield to it.’” Id. (citing Sinnot, 22 How. 

at 243).

In Locke, the Court held that the State’s regulations were preempted by federal statutes and 

regulations pertaining to oil tankers. Id. at 113-117. Part of the analysis is one of “conflict 

preemption,” which occurs “when compliance with both state and federal law is impossible, or 

when the state law ‘stands as an obstacle to the accomplishment and execution of the full purposes 

and objectives of Congress.’” Id. at 109 (citing California v. ARC America Corp., 490 U.S. 93, 

100-101 (1989)). Specifically, “Coast Guard regulations are to be given preemptive effect over 

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conflicting state laws.” Id. at 109-110 (citing City of New York v. FCC, 486 U.S. 57, 63-63 (1988) 

(“‘[A] federal agency acting within the scope of its congressionally delegated authority may 

preempt state regulation’ and hence render unenforceable state or local laws that are otherwise not 

inconsistent with federal law.”). The relevant inquiry is “whether the Coast Guard has 

promulgated its own requirement on the subject or has decided that no such requirement should be 

imposed at all.” Id. at 110 (citing Ray v. Atlantic Richfield Co., 435 U.S. 151, 171-172 

(“‘[W]here failure of...federal officials affirmatively to exercise their full authority takes on the 

character of a ruling that no such regulation is appropriate or approved pursuant to the policy of 

the statute,’ States are not permitted to use their police power to enact such a regulation.” 

(internal citation omitted). In addition, “even in the context of a regulation related to local waters, 

a federal official with an overview of all possible ramifications of a particular requirement might 

be in the best position to balance all the competing interests.” Id. (citing Ray, 435 U.S. at 177).

“[T]he Supremacy Clause dictates that the federal judgment that a vessel is safe to navigate United 

States waters prevail over the contrary state judgment.” (citing Ray, 435 U.S. at 165).

2. Cruise Vessels Are Subject to an Extensive Federal Regulatory Regime 

The extensive federal role in the design, operations, construction, navigation, manning and 

equipment of oil tankers as discussed in Locke is mirrored in federal and international regulation 

of cruise vessels, where there is “a history of significant federal presence.” Locke, 529 U.S. at 

108. Accordingly, as in Locke, “there is no beginning assumption that concurrent regulation by 

the State is a valid exercise of its police powers.” Id. Rather, the issue is “whether the local laws 

in question are consistent with the federal statutory structure.” Id. As discussed below, the 

proposed Key West regulations are not consistent with the federal statutory structure and cannot 

stand under the Supremacy Clause.

a. Coast Guard Regulations

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The federal government, through the Coast Guard and other federal agencies, routinely 

prescribes practices, procedures, and standards for vessel operations and, in the interests of safety, 

health, environmental protection, and maritime and national security, directs where vessels may, 

and may not, operate or anchor. See 46 C.F.R. Subchapter H. The Coast Guard regulations “are 

necessary to carry out the provisions of law affecting passenger regulations and such regulations 

have the force of law.” 46 C.F.R. § 70.01-1. These regulations “have preemptive effect over State 

or local regulations in the same field.” Id.

Foreign vessels which are “of a foreign nation signatory to the International Convention 

for Safety of Life at Sea, 1974, and which has on board a current valid safety certificate” or vessels 

that are “of a foreign nation having inspection laws issued by its government approximating those 

of the United States together with reciprocal inspection arrangements with the United States, and 

which has on board a current valid certificate of inspection issued by its government under such 

arrangements” (46 C.F.R. §70.05-3(b) (emphasis supplied)) underscore the foreign commerce 

elements of safety and the need for uniformity under the Supremacy Clause. 

The Coast Guard regulations found in 46 C.F.R. Subchapter H contain requirements for 

the inspection and certification of passenger vessels4 (Part 71), construction and arrangement (Part 

72), fire protection equipment (Part 76), vessel control and miscellaneous systems and equipment 

(Part 77), operations (Part 78), and disclosures of safety standards and country of origin (Part 80). 

Included amongst the regulations are requirements for passenger vessels to display a valid 

certificate of inspection. 46 C.F.R. § 71.01-5. No vessel subject to Coast Guard inspection and 

certification can be operated without a valid certificate of inspection. 46 C.F.R. § 71.01-2. 

 4 “Passenger vessels” includes those ships referred to as “cruise ships” and “cruise vessels.” See 

46 C.F.R. § 70.10-1 (defining passenger vessels). “Vessel” also includes those ships referred to 

as “cruise ships” and “cruise vessels.” Id. 

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Certificates of inspection “may be revoked or suspended by the Coast Guard where such process 

is authorized by law.” 46 C.F.R. § 71.01-10. (emphasis supplied). As noted above, the regulations 

in Part 71, and indeed all of Subchapter H, have preemptive effect over State or local regulations. 

b. The Federal Regulatory Regime Includes Other Federal Agencies 

The extensive, sophisticated federal regulatory regime is not limited to the Coast Guard. 

Other federal agencies, such as the Center for Disease Control and Prevention (“CDC”), 

Environmental Protection Agency (“EPA”), and Federal Maritime Commission (“FMC”) all 

regulate aspects of the passenger cruise line industry. For example, the CDC oversees the Vessel 

Sanitation Program (“VSP”), which subjects vessels to undergo two unannounced health 

inspections per year. The VSP inspections cover medical facilities, potable water systems, 

swimming pools and whirlpool spas, galleys and dining rooms, child activity centers, hotel 

accommodations, ventilation systems, and common areas. See 42 U.S.C. Section 264 

Quarantine and Inspection Regulations to Control Communicable Disease; see also 

https://www.cdc.gov/nceh/vsp/default.htm. The FMC administers financial responsibility 

requirements that ensure passengers can recover for losses caused by casualties or failures to 

perform cruise undertakings. See 46 C.F.R. § 540.

In recent times, the CDC was one of the primary agencies leading the federal government’s 

response to the COVID-19 crisis. The CDC’s Second Modification and Extension of No Sail Order 

and Other Measures Related to Operations, issued July 16, 2020, makes clear that the federal 

government, not state or local governments, issues “controlled free pratique”5 in international, 

interstate, or intrastate waterways subject to the jurisdiction of the United States. The Order states:

 5 42 C.F.R. § 71.1(b) defines “controlled free pratique” as “permission for a carrier to enter a U.S. 

port, disembark, and begin operation under certain stipulated conditions.”

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1. Cruise ship operators shall continue to suspend passenger operations and not 

embark passengers, except as approved by HHS/CDC personnel and USCG, in 

consultation with other federal authorities as appropriate. (emphasis supplied)

2. As a condition of obtaining or retaining controlled free pratique to operate in any 

international, interstate, or intrastate waterways subject to the jurisdiction of the 

United States, cruise ship operators shall continue to follow CDC’s Interim 

Guidance for Mitigation of COVID-19 Among Cruise Ship Crew During the Period 

of the No Sail Order, including reporting to HHS/CDC through weekly submission 

of the Enhanced Data Collection (EDC) form, as may be updated. Additionally, 

cruise ship operators shall report to USCG via Advance Notice of Vessel Arrival 

(ANOA), whenever in U.S. waters.

3. As a condition of obtaining or retaining controlled free pratique to operate in any 

international, interstate, or intrastate waterways subject to the jurisdiction of the 

United States, cruise ship operators with appropriate NSO response plans shall 

continue to follow the COVID-19 Color Coding System requiring preventive 

measures for crew onboard based on the ships’ status, as determined by HHS/CDC.

4. As a condition of obtaining or retaining controlled free pratique to operate in any 

international, interstate, or intrastate waterways subject to the jurisdiction of the 

United States, cruise ship operators with appropriate NSO response plans shall 

conduct viral testing for COVID-19 for crew in such a manner as described in the 

relevant CDC guidance with reporting of results in the EDC form.

See Second Modification and Extension of No Sail Order and Other Measures Related to 

Operations, available at: https://www.cdc.gov/quarantine/pdf/No-Sail-Order-Cruise-ShipsSecond-Extension_07_16_2020-p.pdf. 

This extensive federal statutory and regulatory regime consists of detailed regulations from 

the Coast Guard, CDC, FMC, and EPA that make clear that permission for a carrier to enter a U.S. 

port, disembark, and begin operation, and the power to revoke such permission, lies solely with 

the federal government. “Congress did not anticipate that a vessel found to be in compliance with 

the Secretary’s design and construction regulations and holding a Secretary’s permit, or its 

equivalent...would nevertheless be barred by state law from operating in the navigable waters of 

the United States...” Ray, 435 U.S. at 163-164. Like the extensive federal statutory and regulatory 

regime in Locke, these federal laws and regulations are subject to conflict preemption and “are to 

be given preemptive effect over conflicting state laws” and field preemption “because they are 

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within a field reserved for federal regulation” and “Congress has left no room for state regulation 

of these matters.” Locke, 529 U.S. at 109-111.

c. Treaties and International Agreements

The cruise vessel industry is inherently international, involving vessels registered in many 

nations trading in complex itineraries to all parts of the world. The cruise ships which dock in Key 

West were 100% foreign flag vessels in 2019. (SOF ¶ 39). In addition to the U.S. federal statutory 

and regulatory requirements discussed above, the “scheme of regulation includes a significant and 

intricate complex of international treaties and maritime agreements bearing upon the licensing and 

operation of vessels.” Id. at 102. The international regime “depends upon the principle of 

reciprocity...[t]hat is to say, the certification of a vessel by the government of its own flag nation 

warrants that the ship has complied with international standards, and vessels with those certificates 

may enter ports of the signatory nations.” Id.; see also 46 U.S.C. § 3303. A key structural 

component of the network of maritime treaties and conventions to which the United States is a 

party is the notion of reciprocity – signatory nations, including the United States, accept 

compliance by another nation as satisfying conditions for port entry. The Supremacy Clause 

dictates that a disparate state law “must yield when it is inconsistent with, or impairs the policy or 

provisions of, a treaty or of an international compact or agreement.” United States v. Pink, 

315 U.S. 203, 231 (1942). When the national government has exercised its indisputable foreign 

affairs powers to commit the Nation to vessel standards agreed to by various maritime countries, 

it is constitutionally abhorrent that a municipality would seek to restrict the operation of a vessel 

that the federal government has pledged to accept in U.S. ports. 

Treaties to which the United States is a party are the International Convention for the Safety 

of Life at Sea, 1974, 32 U.S.T. 47, T.I.A.S, No. 9700, the International Convention for Prevention 

of Pollution from Ships, 1973, S. Exex. Doc. C, 93-1, 12 I.L.M. 1319, as amended by 1978 

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Protocol, S. Exec. Doc. C., 96-1, 17 I.L.M. 546, and the International Convention of Standards of 

Training, Certification and Watchkeeping for Seafarers, With Annex, 978 (STCW), S. Exex. Doc. 

EE-96-1, C.T.I.A. No. 7624. Id. These conventions, established under the auspices of the 

International Maritime Organization (IMO), bind signatory maritime nations to minimum 

standards for vessels flying their own flag, but also impose the sole enforceable standards that each 

party may impose on the vessels of other signatory nations’ flags. It is into this complex 

environment of diplomacy and exercise of the foreign affairs powers of the United States that the 

proposed Initiatives now seek to intrude. 

Locke did not find it necessary to reach the question of whether the network of maritime 

treaties to which the United States is a party have, ex proprio vigore, preemptive force because it 

found the challenged state regulations were preempted by federal statute and regulations. 529 US

at 103. However, the Court did find that “[t]he existence of the treaties and agreements on 

standards of shipping is of relevance, of course, for these agreements give force to the longstanding 

rule that the enactment of a uniform federal scheme displaces state law ,and the treaties indicate 

Congress will have demanded national uniformity regarding maritime commerce.” Id. 

B. The Key West Proposals Would Ban Federally-Licensed, Permitted or 

Regulated Vessels from the Port of Key West

A state ban on port calls by a federally-licensed, permitted, or regulated vessel constitutes 

a clear violation of the Supremacy Clause. See Young v. Coloma-Agaran, 340 F.3d 1053, 1057 

(9th Cir. 2003) (concluding that a state law precluding tour boat operators from operating their 

vessels in a particular bay in Hawaii was preempted because “the ban completely excludes the 

plaintiffs from conducting their federally-licensed, permitted, or regulated tour boat business in 

Hanalei Bay.”). 

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The Key West proposals would ban federally-licensed, permitted, or regulated cruise ships 

from the Port of Key West. In commenting on the importance of ports to the cruise line industry, 

the Eleventh Circuit has observed that:

Ports-of-call not only add to the enjoyment of a cruise but form an essential function 

of the cruise experience...[p]lainly, individuals choose cruise ship vacations 

because they want to visit unfamiliar places ashore. Cruises...offer fundamentally 

different experiences, not generally because of any material difference between 

ships, but often because of where the ships elect to stop. See Isham v. Pacific Far 

East Line, Inc., 476 F.2d 835, 837 (9th Cir.1973) (“Where a passenger or cruise 

vessel puts into numerous ports in the course of a cruise, these stopovers are the 

sine qua non of the cruise.”). When a passenger selects a particular cruise, portsof-call or stopovers provide those passengers with the “cruise experience” for 

which they are paying. Simply put, the destinations or ports-of-call are frequently 

the main attraction.

Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (11th Cir. 2004) (emphasis in original).

The challenged Initiatives include both an outright ban on passenger disembarkations from 

vessels that exceed a combined (passengers and crew) capacity of 1,300, and an upper limit on 

daily disembarkations of 1,500. Using the projected 2021 Key West Port Calendar, plaintiffs

calculate that these proposals would, if enacted, prevent 428 of the planned 455 port calls of cruise 

ships. Those banned port calls represent 94% of total planned cruise ship visits to Key West and 

approximately 1.1 million cruise ship passengers. (SOF ¶ 34). Imposition of the daily 1,500 

passenger disembarkation limit would reduce 2021 daily disembarkation levels from 

approximately 1.1 million annual visitors to 13,404. (SOF ¶ 37).

Put another way, the Key West proposals ban 94-98% of federally-authorized cruise ship

visits to Key West in 2021, 2022, and 2023, and results in approximately 1 million passengers 

turned away each year. (SOF ¶¶ 34-37). As in Young, such a ban “completely excludes the 

plaintiffs from conducting their federally-licensed” business and cannot stand under the 

Supremacy Clause. See Young, 340 F.3d at 1057. The bans and limits on passenger 

disembarkations are functionally indistinguishable from a ban on entering a port. No cruise 

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vessel will call at a port where passengers cannot leave the ship. Moreover, a very low upper limit 

on daily passenger disembarkations would essentially permit the first vessel to arrive each day to 

discharge a portion of its passenger complement, but render pointless any further vessel calls. 

Scheduling of the arrival of multiple cruise ships would become an exercise in futility. 

The Initiatives, if enacted, would express a decision by the City to wall itself off from the 

maritime commerce of the United States. The vast majority of cruise vessels meeting all applicable 

standards imposed by the United States and entitled to land passengers at other ports around the 

country would be prohibited from calling at Key West. Cruise itineraries are complex. This 

element of the interstate and foreign commerce of the United States would collapse if every port 

were to impose separate physical limitations on the capacities and activities of vessels that had met 

all international and federal standards for operation in the waters of the United States. 

C. The Initiatives Impose a Local Restriction in Violation of the Commerce 

Clause

“The Congress shall have power to . . . regulate commerce with foreign nations, and among 

the several states, and with the Indian tribes.” Art. I, § 8, cl. 3. The federal government has 

imposed an extensive, complex, and technically demanding regulatory regime governing the 

operation of ocean vessels serving the commerce of the United States. This regulatory structure 

includes the passenger vessels that are the subjects of the Initiatives. Federal statutes, regulations, 

and case law discussed above demonstrate the federal government’s interest in regulating maritime 

commerce at a national level because of a need for uniformity. The need for the uniformity and 

consistency in the regulation of commerce with foreign nations and between states was recognized 

by the Supreme Court as far back as Gibbons v. Ogden, 22 U.S. 1, 74 (1824) (“The power over 

commerce, including navigation, was one of the primary objects for which the people of America 

adopted their government. . . .”); see also Cooley v. Bd. of Wardens of Port of Philadelphia, 53 

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U.S. 299, 319 (1851), abrogated by Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 

180 (1995) (“Whatever subjects of this [Commerce] power are in their nature national, or admit 

only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to 

require exclusive legislation by Congress”). The Supreme Court has described the federal 

government’s power over foreign commerce as “exclusive and absolute”, Buttfield v. Stranahan, 

192 U.S. 470, 493 (1904), and impinging on “sensitive matters of foreign relations and national 

sovereignty.” Japan Line, Ltd. v. Los Angeles County, 441 U.S. 434, 456 (1979). Congress’ 

exercise of power over foreign commerce “may not be limited, qualified, or impeded to any extent 

by state action.” Bd. of Trustees, 289 U.S. at 56-57. “A regulation which imposes onerous, perhaps 

impossible conditions on those engaged in active commerce with foreign nations, must of necessity 

be national in its character . . . . it may properly be called international.” Henderson v. Mayor of 

City of New York, 92 U.S. 259, 273 (1875) (emphasis in original). 

Every cruise journey involves advanced planning for complex vessel itineraries, the 

interstate and foreign travel of passengers not only aboard the vessel but in various conveyances 

on which they travel to and from the ship, requires long-term coordination for procuring provisions 

and supplies, all of which move in the interstate and foreign commerce of the United States.6

 

The level of international and interstate coordination required for the cruise industry is exactly the 

kind of commerce that requires uniformity. E.g., Pittston Warehouse Corp. v. City of Rochester, 

528 F. Supp. 653, 660 (striking down city law seeking to “block the free flow of interstate and 

foreign commerce by prohibiting the port to be used for commercial interstate and international 

shipping activities”).

 

6 E.g., “Behind the Scenes on the High Seas: Cruise Ship Logistics,” now that’s logistics, April 

11, 2016, available at https://nowthatslogistics.com/behind-the-scenes-on-the-high-seas-cruiseship-logistics/ (last visited July 30, 2020). 

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The Initiatives, if enacted, would essentially place Key West off-limits to cruise vessel 

calls and disrupt the flow of foreign and interstate commerce. The Initiatives would impose on 

cruise vessels a design requirement limiting their total passenger and crew capacity to 1,300 

persons. They would extinguish passenger disembarkations once the daily total for all cruise 

vessels in Key West reached 1,500 passengers, a small fraction of the 2019 disembarkations in the 

port. And, finally, the challenged Questions would subject cruise vessels and cruise lines to the 

grant by the City of “preferences and priority” based on malleable references to federal 

environmental and health standards. (SOF ¶ 27). 

These proposed rules would: (1) prescribe arbitrary limitations on foreign commerce 

coming into Key West, (2) disrupt the operations of domestic and foreign corporations doing 

business in Key West, (3) prevent foreign and interstate travelers on international vessels from 

disembarking at Key West, and (4) severely diminish Key West pilots’ ability to provide valuable 

services to instrumentalities of interstate and foreign commerce. The City, alone, does not have 

the authority to make such rules. Pittston Warehouse, 528 F. Supp. at 660-61 (“Whether the river 

may be used for recreational as opposed to commercial shipping operations is not a decision which 

the City Council may determine singlehandedly. As a navigable waterway, the river is deemed 

the public property of the nation, and subject to all the requisite legislation by Congress.”). For 

one port to set up a wall around itself forbidding commerce from 98% of cruise ships active in 

foreign commerce is exactly the kind of local obstruction of commerce that the Founders sought 

to avoid by empowering Congress to regulate commerce. “The Commerce Clause was designed 

to avoid the tendencies toward economic Balkanization that had plagued relations among the 

Colonies and later among the States under the Articles of Confederation.” South-Central Timber 

Dev., Inc. v. Wunnicke, 467 U.S. 82, 92 (1984) (internal quotations omitted). “Unrepresented 

interests will often bear the brunt of regulations imposed by one State having a significant effect 

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on persons or operations in other States. Thus, when the regulation is of such a character that its 

burden falls principally upon those without the state, legislative action is not likely to be subjected 

to those political restraints which are normally exerted on legislation where it affects adversely 

some interests within the state.” Id. at 92-93.

In Henderson v. Mayor of City of New York, 92 U.S. 259 (1875), the Supreme Court struck 

down an attempt by New York state to require a surety for passengers arriving in New York from 

foreign countries. The Court found that the state statute would impinge on the international 

transportation of passengers, foreign commerce that was committed to Congress. “The laws which 

govern the right to land passengers in the United States from other countries ought to be the same 

in New York, Boston, New Orleans, and San Francisco.” Henderson, 92 U.S. at 273. Similarly, 

in Chy Lung v. Freeman, 92 U.S. 275, 280 (1875), the Supreme Court struck down a California 

law requiring an examination of passengers arriving from foreign countries upon landing. Upon 

examination, an immigration commissioner would, in his sole discretion, determine whether each 

person was likely to become a public charge and, if so, would require a large bond for that person 

to alight from the ship. 92 U.S. at 278-81.

The Initiatives would render the rules for landing passengers in Key West different than 

those in other deep-water ports in the U.S. Like the laws that were struck down in Henderson and 

Chy Lung, the City may not impose restrictions which interfere with protected commerce. 

D. The Initiatives Restrict Private Property Rights in Violation of Fla. Stat. 

§ 163.3167(8) in Derogation of the Express Language of the Statute

Intervenor Pier B Development Corporation owns and operates the Pier B dock pursuant 

to a Development Order promulgated and agreed to by the Pier B Development Corporation in 

1994. (SOF ¶¶ 12, 13). That Development Order provides for the structure and use of the land in 

order to achieve its maximum use as a cruise ship dock. The Initiatives interfere with, are 

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inconsistent with, and dramatically change the operation of Pier B as it was designed to guarantee 

that the dock’s operation would be unencumbered by subsequent alterations. 

Initiatives 1 and 2 seek to: (1) limit the number of persons disembarking from cruise ships 

to a total of 1,500 persons per day at any public or privately owned or leased property in Key West 

and (2) prohibit cruise ships with the capacity to carry 1,300 or more persons from disembarking 

any persons at any public or privately owned or leased property in Key West. Initiative 3 seeks to 

provide unfettered discretion to the City (without articulating who or how) to offer preferences 

and priorities despite the fact that all cruise ships which dock in Key West are federally licensed, 

permitted, or regulated. The three docking facilities at the Port of Key West that are the subject of 

the Amendments are located on three separate parcels of land; the City-owned Mallory Square, the 

Navy’s Outer Mole, and the privately-owned Pier B. (SOF ¶ 30).

A “‘[d]evelopment order’ means any order granting, denying, or granting with conditions 

an application for a development permit.” Fla. Stat. § 163.3164. A “[d]evelopment permit” 

includes any “official action of local government having the effect of permitting the development 

of land.” Fla. Stat. 163.3184(14) Fla. Stat. 163.3184(16). The Florida Legislature has defined 

“development” to include “the making of any material change in the use or appearance of any 

structure or land[.]” Fla. Stat. 163.3184(14) citing Fla. Stat. 380.04(1). (emphasis supplied). 

Any official action of a local government, such as an amendment to a municipal charter 

that makes a material change in the use of any structure of land, is not allowed. As such, 

Questions 1 and 2 the use of property, and are therefore prohibited by law. “An initiative or 

referendum process in regard to any development order is prohibited.” Fla. Stat. 

§ 163.3167(8)(a)(emphasis and underline supplied).

The statutory language leaves does not allow Questions 1 and 2 to place restrictions on the 

use of private property, and Question 3 opens the door to restrictions and requirements on Pier B 

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via City action. The prior development orders issued by the City of Key West govern the 

regulation and use of Pier B’s land. They cannot be changed by an initiative or referendum. 

The Third District Court of Appeal has left no doubt that any attempt to do so is illegal and must 

be stricken:

[t]he legislative prohibition in section 163.3167(8)(a) tackles the issue of 

whether an individual's property rights may be subject to the will of the voters. In 

resolving this issue in favor of the property owner, the Legislature established 

consistency with land use law that confers due process rights on property owners 

through a quasi-judicial process. See Preserve Palm Beach Political Action Comm. 

v. Town of Palm Beach, 50 So.3d 1176, 1179 (Fla. 4th DCA 2011). The quasijudicial process for site-specific development orders has become an unassailable 

principle of the process of property development in Florida. See Bd. of Cty. 

Comm'rs of Brevard Cty. v. Snyder, 627 So.2d 469, 474–75 (Fla. 1993).

Mullen v. Bal Harbour Vill., 241 So. 3d 949, 956 (Fla. 3d DCA 2018). Municipal 

initiatives and referendums, such as the ones here, that attempt to bypass the quasi-judicial process 

set up by the Florida Legislature constitute “illegal referendum[s].” Id. at 958. The Florida 

legislature prohibited this type of municipal initiative in 2011; the City cannot have an unlawful 

election on a measure that the Florida Legislature clearly and unambiguously barred. Id. at 956. 

On December 8, 1986, the State of Florida and the City of Key West entered into a 

development agreement with the then-owner of the location named the “Truman Annex” and 

subsequently issued a DRI Development Order for the Truman Annex Development of Regional 

Impact (the “Truman Annex DRI”) to develop the privately-owned Pier B to accommodate cruise 

ship tourism. See Agreement For the Built-Out Truman Annex DRI, DE 31-1. The Truman Annex 

DRI was subsequently amended twelve times leading to an Agreement for Build Out, Resolution 

99-457, a development order authorized under Fla. Stat. § 380.06. DE 31-2 (“Agreement for Vuild 

Out”). 

In the Agreement for Build Out, the City, the state of Florida (through the Florida 

Department of Community Affairs) and the property owner agreed to additional conditions for a 

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build out, including the development of Pier B and its use which is incorporated into the Agreement 

for Build Out through the Declaration of Covenants, Conditions, and Restrictions for Pier B at 

Truman Annex, Resolution 93-405, paragraph 2 which provides as follows:

The Declarant will immediately begin construction . . . to Pier B to allow its use as 

a cruise port facility . . . to accommodate cruise ship passengers . . . 3. The 

Declarant shall use its best efforts to solicit and book cruise ships so as to maximize 

disembarkation fee revenue . . . 7. The covenants, conditions and restrictions of the 

Declaration shall run with and bind Pier B, shall be enforceable against the 

Declarant or its successors in title to Pier B for a term of twenty-one (21) years 

from the date hereof, after which time this Declaration shall automatically extend 

for successive periods of ten (10) years unless an instrument signed by the 

Declarant or its successors in title to Pier B and the City has been recorded in the 

Public Records of Monroe County, Florida agreeing to terminate this Declaration, 

in whole or in part.

The development process for Pier B went through the proper quasi-judicial process with the City 

for approval, and cannot be undermined through public initiatives. See Mullen, 241 So. 3d at 956. 

The quasi-judicial process for site-specific development orders has become an unassailable 

principle of the process of property development in Florida. Id. The initiative process seeking to 

enact the three amendments to the Charter of the City of Key West are in regard to, and directly 

affect, the Pier B Development Order and the accompanying Resolution. Initiatives which are in

contravention of state law, are not permitted to be considered by voters. Id. at 957. 

E. CONCLUSION

For the reasons set forth above, summary judgment should be entered in favor of the 

Plaintiffs on all counts of the Complaint.

Dated: August 3, 2020. Respectfully Submitted,

Counsel for Plaintiff, 

KEY WEST BAR PILOTS ASSOCIATION, 

and 

Counsel for Plaintiff/Intervenor,

PIER B DEVELOPMENT CORP.,

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{00205088 - v2 } 21

S M I T H / H A W K S

138 Simonton Street

Key West, Florida 33040

Telephone: (305) 296-7227

Primary: Bart@SmithHawks.com

Chris@SmithHawks.com

Ashley@SmithHawks.com

Nikki@SmithHawks.com

Secondary: Brandi@SmithHawks.com 

Jen@SmithHawks.com 

BY: /s/ Barton W. Smith

BARTON W. SMITH, ESQ.

Florida Bar No. 20169

CHRISTOPHER B. DEEM, ESQ.

Florida Bar No. 94462

ASHLEY N. SYBESMA, ESQ.

Florida Bar No. 22059

NICOLA J. PAPPAS, ESQ.

Florida Bar No. 126355

AND

BRUCE S. ROGOW, P.A.

100 N.E. Third Ave., Ste. 1000

Fort Lauderdale, FL 33301

Telephone: (954) 767-8909

Primary: BRogow@RogowLaw.com

Tcampion@rogowlaw.com

BRUCE S. ROGOW, ESQ.

Fla. Bar No. 067999

TARA A. CAMPION, ESQ.

Fla. Bar No. 90944

AND

THOMPSON COBURN, LLP

1909 K Street, N.W., Suite 600

Washington, D.C. 20006

Telephone: (202) 585-6985

Primary: jbenner@thompsoncoburn.com

JONATHAN BENNER, ESQ.

pro hac vice

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