Now that it’s been reported in today’s Key West Citizen, here’s my version of of the tour company ordinance part of night before last’s city commission meeting. It was the last item on a very long agenda. Maybe last, some people suggested to me, to get people to give up and leave, instead of stick it out and speak. I left at 12:30 p.m. I heard from someone who stayed that it went a while longer and not much else happened. My opinion, this item should have been taken up at a separate commission meeting dedicated just to this item, which is how it had been done two weeks prior. This issue is volatile and huge. It takes on something that is long past due to be fixed.
Sloan Bashinsky
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Ever lurking during the tour ordinance segment of this last city commission meeting was Key West having given a monopoly once up on a time to Ed Swift’s company, Historic Tours of America (HTA), to operate tours in Key West; a monopoly that wound up in a very long court and appellate court process and finally cost the city $8,000,000 in a court settlement this year, which nearly bankrupted the city treasury.
A horde of people spoke out in favor of quality of life, meaning, no more new tours in their neighborhoods. Meaning to me, they hoped the City Commission would keep out new tour companies. Alas, this approach would have allowed HTA to keep its monopoly. Meaning, let’s get sued again by Duck Tours, but this time, with Duck joined by CityView Trolleys, the third third tour applicant, whose local ramrod is a former son-in-law of Ed Swift and a former employee of HTA.
Ed Swift, and other HTA officials/employees spoke for giving HTA a 300-foot diameter of protection around its current pick up and let off and ticket sales locations on Key West streets, because, Swift said, HTA had worked so hard for so many years to build up its business (franchise) at those stops. Business HTA had built up at those stops because it had a monopoly the city had given to it. My sympathy level was a bit low, nd I had heard yet again that in two other cities where HTA and CityView compete, they share the same stops along with other tour companies.
At the next previous city commission meeting on this topic, City Attorney Sean Smith had told the commissioners and mayor that they should not go along with a 300-foot protected zone in favor of HTA. At the same meeting, John Marsh, owner of Duck Tours, the $8,000,000 Key West lotto winner, had told the commissioners and mayor that a protected zone had been ruled illegal by the appellate court in the Duck Tours case. Even so, four commissioners at that meeting had then voted to give to HTA the 300-foot protected zone, which looked to me like an extension of the monopoly. I came away from that meeting thinking maybe Ed Swift had those four commissioners in his pocket. Commissioners Wardlow, Lopez, Rossi and Weekley, as I recall.
When I spoke night before last, I started by saying I had attended the previous commission meeting and had been following the entire matter for years in the press, news, etc. I had yet to hear Ed Swift or any of his employees express an ounce of remorse for the $8,000,00 the city had to pay because it had given HTA a monopoly. I said HTA provides a valuable service to Key West, but I would be far more inclined to hear what they have to say, if Ed Swift and his employees pulled out their checkbooks and paid the $8,000,000 back to the city.
I looked directly at Commissioner Weekley and said something like, “You, Commissioner, were part of the original grind them [Duck Tours] into dust city commission. You have a conflict of interest and should have nothing to do with this discussion.” In my thoughts was that I had never heard of Commissioner Weekley apologizing for his role in that decision. To the contrary, I had only heard him defend it.
I then turned to the entire body and asked if they were willing to reimburse the city out of their own pockets, if what they decided ended up costing the city another bundle. I noticed a strong visceral reaction in several commissioners and Mayor Cates, who, along with commissioner, Rossi I think it was, said I was out of line. I said I was speaking to them as a lawyer, which I am. I said, if I were sitting up there where they sat, I would view myself as being personally responsible for making a decision that produced another Duck Tours result. I said that when Ed Swift had spoken earlier, he had invited the commissioners and mayor to seek a third, outside opinion, and I was providing it.
I addressed Swift’s earlier remark that the city should not be caving into the new tour companies out fear of being sued by them. Well, gee whiz. Everyone there knew was Ed Swift’s monopoly that got the city so afraid of being busted in a lawsuit, busted a lot more than HTA got busted. About 8-times more busted, from what I have heard of the settlement HTA made with Duck Tours under a court sealed settlement that, as far as I know, has yet to be made public even though that case is entirely over now. I don’t think I’m alone in wondering what’s in that settlement agreement that somebody didn’t want made public. Well, perhaps I digress and should return to the last city commission meeting.
I told the commissioners, mayor, staff and audience that Ed Swift would sue the city in a heartbeat, if the city gave competitors what Swift viewed as a better deal. I said the franchise agreement between the city and HTA specifically says the city cannot give a competitor a better deal that HTA is getting from the city. I said that contract provision itself is monopolistic, because it protects HTA’s deal with the city, which was ruled a monopoly.
A deal, we now know, despite Ed Swift’s claims at the previous city commission meeting, the city didn’t get paid everything under. A deal a citizen speaker, Margaret Ramirez, earlier had told the commissioners and mayor the city should cancel for breach of contract and start HTA out on a clean slate with its new competition.
I hoped the commissioners and mayor understood I was telling them they are not above the law; they can be held personally liable for selling the city out, like what a previous city commission and mayor did in the past by running Duck Tours out of business for Ed Swift. Maybe they did understand me. Maybe that’s what upset them when I asked if they were willing to put their personal assets on the line, if they brought us another Duck Tours result.
If I had been Duck Tours’ lawyer in that case, I would have included the then mayor and city commissioners as defendants in the lawsuit filed against HTA and the City of Key West. If I had been a private citizen back then, I might have filed a third-party intervention, asking the court to include the then sitting commissioners and mayor as defendants, liable to the citizens of Key West, if Duck Tours prevailed.
Maybe I was the only citizen who spoke, who received stone silence after speaking. Every other speaker received some or a lot of applause, especially those who spoke in favor of quality of life, which I viewed as asking the commissioners and mayor to protect HTA’s monopoly.
After I spoke, I started shaking from the depth of my soul. It lasted a while, and I was messed up until I left my apartment to head to Sippin’ Internet Cafe the next morning to be interviewed on radiofreekeywest.com. An interview I did not know would happen; they asked me on the air with them, so I went on.
Besides recapping much of the above, I said I felt City Attorney Sean Smith had done a very good job at the commission meeting. It looked to me that it was Sean’s urging that finally got the four commissioners, who previously had ignored his advice not to give HTA a 300-foot diameter protected zone, to agree to let the City Manager decide where the new tour companies could pick up, let off and sell tickets, including the same locations as HTA’s. Applicants and HTA and nearby affected property owners would be given prior notice of the designations and a chance to file an appeal to the City Commission.I also said on the air that these four commissioners did not appear happy about going along with Sean. One, Commissioner Lopez, took a long pause before voting in favor of Sean’s advice. I opined on the air, imagine how it would have looked in a joint lawsuit filed against the city and those four commissioners by, say, Duck Tours and CityVew, if those four had not switched their vote and had gone against their own city attorney’s advice. How would a jury would have felt about that?
I said on the air that Sean Smith also shot down the demand for an impact study – traffic, noise, pollution, etc. — before allowing more tour companies to do business in Key West. He told the commissioners and mayor that the case law was clear that a study could not be used to stop competitor applicants already in the pipeline from entering the market place. Perhaps in Sean’s thinking was the fact that HTA never had to do an impact study, and there was no hue and cry over that, and to require an impact study just for Duck Tours and CityView would be viewed by a court as the city protecting HTA’s monopoly.
What the city can do, if it truly is worried about tour vehicle overcrowding, is reduce the number of vehicles HTA can put on the streets by the number of new vehicles CityView and Duck Tours put into service. Or, the city can just let the free market place determine how many tour vehicles the city can support. It might not be pretty for a while, but it will be efficient, if it is a level playing field, which it certainly has not been.
As far I have been able to determine, the commissioners and mayor and city staff still don’t know what HTA owes the city from previous years. For all I know, we need to get the commissioners and mayor to order a forensic audit of both the city and HTA, with respect to HTA’s franchise agreement and payments to the city. For all I know, State Attorney Dennis Ward should be looking over the city’s and HTA’s shoulders. Maybe we are dealing with something worse than we so far have been willing to face up to.In closing, here is an email I received yesterday from local activist Diane Bureldsen, who said she had watched the commission meeting on the city television station -Channel 77.—————————— hey sloan
your my hero
i heard you last night at the commission meeting talking about hta
you said it right
if i was in the audiance i would have clapped for you
the others were too scared?
good for you