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Who's driving the train in city franchise issue?
Is the city's franchise agreement with the
Conch Train and Old Town Trolley dictating not only city policy but now
state law as well?
That would appear to be the case, after
the recent revelation that state Rep. Ken Sorensen has introduced a bill
that would offer the city legal protection for a franchise that a state
appeals court recently labeled as a monopoly.
The label came in a stinging reproof
delivered by the Third District Court of Appeal to the city of Key West,
in the case filed by Duck Tours Seafari in 1995. Duck Tours had
attempted to offer tours of Key West's streets and harbor using
amphibious military landing craft and found it impossible to operate,
given the city's franchise agreement with the Conch Train and Trolley. A
local court judge ruled in the city's favor and dismissed the case. The
Duck Tours appealed.
Last month, the appeals court ruled in
Duck Tours' favor on every count. Any interested citizen with Internet
access should look up the opinion, which is easily available through a
Google search for the Third District Court of Appeal Web site. It is
written in refreshingly clear language and illustrates the extent to
which our public streets have been captured for the exclusive use of a
private business.
"The first problem is that the ordinances
grant monopoly rights to the Train and Trolley," the appeals judges
write. "By their terms, the ordinances grant exclusive rights to operate
the Train and Trolley within Key West, and prohibit the granting of
similar rights to any competitor."
The appeals judges were particularly
critical of the city's attempts to defend the monopoly as a traffic
regulation, thus justifying the 1,000 foot protective radius from every
train and trolley stop or ticket booth. The 1,000-foot prohibition also
applies to competitors' signs, fliers, and ticket sales — even offices
-— which, as the judges note, have "nothing to do with traffic
regulation."
And the 1,000-foot prohibition does not
apply to city buses and taxis, as well as the trains and trolleys
themselves. "This negates the idea that the 1,000-foot limitation serves
a functional purpose other than the exclusion of competitors," the
judges wrote.
Well, OK then. Most reasonable citizens,
upon reading such a decision, would hope the city's insurance premiums
are paid up and that we would start settlement negotiations with the
Duck Tours right away.
Those citizens would be wrong. The city's
preferred course of action is to attempt to change state law in order to
give cities the authority to "grant permits, licenses, or franchises or
otherwise regulate sightseeing operations" and to ensure that "no
liability arises for municipalities for exercising their rights to
regulate sightseeing operations."
There's also a nice clause in there about
how this "reaffirms the policy of the state." Surely the city's
attorneys would have provided documentation of such a state policy to
the appeals court.
It's hard to imagine how such a law,
passed in 2004, could affect a court case filed in 1995. But the true
outrage here is that this law was requested by the city commission back
in September on its consent agenda — meaning there was no public
discussion or disclosure of its true ramifications — and that
Commissioner Ed Scales actually testified in favor of the bill in
Tallahassee.
Commissioner Scales is intelligent and
articulate, and no doubt he argued very effectively in favor of this
measure. The fact that his day job is as attorney for Historic Tours of
America — operator of the Conch Train and Old Town Trolley, the obvious
beneficiary of this bill — should have kept him from any public action
on this, from the city commission's request to any support in
Tallahassee.
Scales told The Citizen that he has no
conflict of interest because this measure protects the city, not HTA —
and besides, their interests are the same. That's extremely convenient
for him, but we would strongly submit that it is not his call and that
he would be far better off to avoid even the appearance of impropriety.
If this measure is truly in the city's best interests, then surely it
can stand on its own merits, or other city officials can make it happen.
As it is, the residents of Key West have good cause to wonder who is
really driving the train. |
