In a unilateral move, Key West’s mayor has ruled that the party will end at 10 p.m. on New Year’s Eve and the ensuing weekend. However, for many business owners and constituents within the city, two looming (and possibly costly) questions are now boiling above the surface. First, is Mayor Teri Johnston’s decision to impose a New Year’s Eve curfew legal without a majority vote from the full city commission? And if not, why has no commissioner called for a special meeting on the issue?
As of now, not long after the sun sets on Dec. 31, non-essential businesses, including bars and restaurants, must close at 10 p.m. Furthermore, no one will be permitted on the streets and sidewalks past 10:30 p.m. unless they’re headed to or from work at an essential business, the directive states.
The announcement of a 10 p.m. curfew for the entire New Year’s weekend came the morning after a three-hour discussion by the city commission that ended without consensus. At least three commissioners — Billy Wardlow, Sam Kaufman and Clayton Lopez — questioned the value and enforceability of a 10 p.m. curfew when an estimated 50,000 people will have to be somewhere on the island.
Attorneys and business owners are questioning the mayor’s authority to unilaterally enact such directives without a vote of the full city commission.
“The City of Key West’s charter and code enumerate the powers of the mayor and the commission,” Key West attorney Bart Smith told the Keys Weekly on Wednesday, Dec. 9. “Nowhere in Key West’s charter or code of ordinances is there language that allows the mayor to act unilaterally in times of emergency. Only the city commission has that authority. Other places, like Miami-Dade, have provisions that allow the mayor to act in a time of emergency and enact a curfew. Key West doesn’t have that. So the question is, where does the mayor of Key West get the authority to enact emergency directives, like the New Year’s curfew?”
Keys Weekly emailed the same question to City Attorney Shawn Smith late on Wednesday, Dec. 9, but received an automated response saying Smith is “out of the office until Monday, Dec. 14.”
Smith followed up with a response after presstime, saying, “Florida statute allows the mayor to enact the local state of emergency and the Commission took action many years ago to delineate powers consistent with statute, as well as specify a line of succession in exercising those powers.” Keys Weekly has requested the specific language of that prior commission action.
Keys Weekly also asked each commissioner by email on Dec. 9 whether they plan to call for a special meeting at which the full commission could vote on a potential curfew.
Commissioners Kaufman and Jimmy Weekley responded to the last-minute question before presstime.
“We follow the advice of our legal counsel that the city has the option to adopt an emergency ordinance or the mayor can enact an emergency directive,” Kaufman replied. “Because the majority of my colleagues voiced support for the mayor’s emergency directive, it is not apparent to me that convening a special meeting would have a different outcome. My preference is that such policies be voted upon at a city meeting with a proposed ordinance properly noticed in advance. Too often recently, the city has adopted directives or ordinances without the proposals being published as an action item in advance of a city meeting….”
Weekley said he supported the mayor’s position that she would issue a directive following the discussion at the meeting.
Legal challenges?
Two Friends Patio Restaurant owner Danny Hughes and his attorneys put the city on notice with a Dec. 9 letter that challenges the mayor’s authority to enact the curfew and emphasizes their willingness to sue the city for financial damages related to the curfew. Hughes also offered to help any other business file similar lawsuits for damages.
“Two Friends will heed the advice of our counsel, and not rely upon, much less be bullied, by anyone undertaking to support what are unreasonable, arbitrary and capricious policies,” Hughes’ letter to the city commissioners states. “If Two Friends is damaged by the actions of the city, and it is determined by a court that the city’s actions were invalid and/or unlawful, Two Friends will seek damages from the city. Two Friends will also assist any other business; be it restaurant, hotel, guesthouse, night club, entertainment venue, watersports, etc., in collecting damages from the city for actions deemed invalid and/or unlawful.”
Hughes’ email to city officials also includes a letter from the Orlando-based law firm of BakerHostetler that echoes Bart Smith’s statements about the mayor’s authority, or lack thereof, to issue such a directive, based on the powers outlined in the city’s charter. In his email, Hughes compares the mayor’s directive, without the consent of the full commission, to “martial law,” while arguing it will be illegal for New Town residents to leave their home for a burger past 10:10 p.m. on New Year’s Eve.
“By the commission not agreeing to meet on this important issue, they are abdicating their duties to the mayor,” said Hughes. “That is clearly not the purpose or the language of the city charter. The constituents in each district deserve and should expect to be represented by their commissioner on this issue.”
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Crowd control questions
An estimated 50,000 people will be somewhere in Key West on New Year’s Eve. The annual conch shell, drag queen and pirate wench “drops” have been canceled, but hotel bookings are near capacity for the holiday weekend that is typically one of the busiest of the year.
Several questions plagued the city commission discussion that ended without agreement.
How many people will stand in a shoulder-to-shoulder New Year’s Eve crowd if there’s nothing to watch drop during the countdown to midnight? Will a curfew effectively protect a crowd that size? What happens at 9 p.m. when people learn that alcohol sales will end in an hour? How will hotels and guesthouses be impacted by guests forced to remain on the properties as of 10 p.m.?
All these and more questions were asked and argued during the Dec. 3 city commission discussion about New Year’s Eve crowd control.
Officials were as divided as the community over what actions can or should be taken.
Kaufman applauded the city’s Health & Business Advisory Committee and called for the commission to support its recommendations of a 1 a.m. curfew; increased outdoor dining; drop cancellations; increased mask signs and advice to elderly and vulnerable residents to remain home that night.
Wardlow and Lopez emphasized that the crowds are already booked and coming.
“I think they’re already coming,” Wardlow said. “We’ll send them off Duval Street at 10 p.m. and into the hotels? They’re gonna go somewhere. I say we cross our fingers and hope for the best.”
Business owners and workers disagreed vehemently with a 10 p.m. curfew.
“If there’s no attraction to watch on Duval Street, people will spread out; they won’t stand shoulder-to-shoulder without something to watch,” event promoter Louie C. Rock pointed out.
“A 10 p.m. curfew puts staff in the precarious position of kicking people out at 10 p.m. This is a grave mistake,” restaurant owner Bill Lay said.
