Cuba Ordinance 101

A New Times guide to busting the county's Cuba law

The government of the country of Cuba continues to maintain a policy of denying common freedom of speech, press, assembly, religion, and human rights to the majority of their citizens. Until this policy changes, Miami-Dade County shall not enter into a contract with any person or entity that does business with Cuba ... or that has traveled to Cuba. -- the policy statement of Miami-Dade County's Cuba ordinance

So how does county law combat Fidel Castro's attacks on free speech? By imposing censorship right here, restricting opportunities for dissident Cuban artists and scholars to communicate with allies from across the Florida Straits.

How does the ordinance promote free speech in Miami? Shut up!

No matter that José Antonio Ponte's book was banned in Cuba -- the enemy of my enemy is no friend of Miami-Dade County
No matter that José Antonio Ponte's book was banned in Cuba -- the enemy of my enemy is no friend of Miami-Dade County
Eager independent filmmakers innocently chat with panelist Larry Meistrich while his fellow panelist collaborates with Havana
Eager independent filmmakers innocently chat with panelist Larry Meistrich while his fellow panelist collaborates with Havana
Miami delirium: Teatro La Ma Teodora performs a play by a Cuban author
Miami delirium: Teatro La Ma Teodora performs a play by a Cuban author

The Miami-Dade County Commission passed the so-called Cuba ordinance in 1996, after Cuban fighter jets shot down four Miami men flying in unarmed Brothers to the Rescue airplanes. In the emotionally charged atmosphere of the time, the commission bolstered existing anti-Cuba legislation with draconian measures that seem to overstep the boundaries of both the U.S. Constitution and federal law.

The Miami-Dade chapter of the American Civil Liberties Union (ACLU) believes the ordinance violates the right to free speech guaranteed by the First Amendment of the Constitution. According to John de Leon, the local ACLU's president, the law also contradicts the Berman Amendment to the 38-year-old U.S. embargo on trade with Cuba. The 1988 amendment, sponsored by U.S. Congressman Howard L. Berman (D-Calif), aims to foster democracy on the island by allowing cultural exchange between the two nations.

When county commissioners approved the Cuba ordinance, their primary intention was to keep county dollars out of Castro's coffers. The policy does not stop, however, at the dollar sign. Miami-Dade prohibits any organization that traffics in island culture from using county facilities or funds, whether or not money changes hands.

To ensure that every organization receiving county support conforms to the ordinance, the county requires each organization to sign a document known as the Cuba affidavit. By signing the affidavit, the organization agrees not to "do business with Cuba" or "do business" with anyone who "does business" with Cuba. The affidavit binds not only the person who signs, but all officers, board members, and investors in the organization, even when their Cuba connections are unrelated to the organization. It also reaches into the past, requiring that none of the key players in the organization have traveled to Cuba through a third country in the past ten years.

Given the extensive reach of the prohibitions, the promises signed with the affidavit can be hard to keep. Strict enforcement of the law is impossible. And the county commission has the discretion to grant waivers as it sees fit.

Many community leaders have said privately they believe the costs of the measure are too high. Over the past four years, it has chased away the once-annual MIDEM music conference on Miami Beach (postponed indefinitely); the Junior Pan Am Track and Field Championships at Florida International University (moved to Tampa); the possibility of the 2007 Pan American Games (moved to San Antonio); and the county's pipe dream of hosting the 2012 Summer Olympics. Finally, neither the luxury suites at the state-of-the-art American Airlines Arena, nor a last-ditch courtship by Broward County and the City of Miami Beach could lure the Latin Grammy Awards to this capital of Latin music after county government refused to cooperate on the grounds that Cuban artists might perform.

The county has accepted economic sacrifice as a means to social justice in the past, passing an antiapartheid law in 1986 that prohibited making contracts with businesses in South Africa or with U.S. businesses that invested in South African firms. The Cuba ordinance, however, goes further. For Cuba the definition of "doing business" includes making music, showing movies, hanging paintings, and performing plays.

The loss of high-profile, big-money-making events is not the only cost. As Michael Spring, executive director of the Miami-Dade County Department of Cultural Affairs, reports, some 300 to 400 arts organizations, large and small, depend in part on county funds and facilities to operate. Spring parrots Mayor Alex Penelas in claiming the county does not censor the arts; it simply doesn't fund groups that do not comply with the ordinance. The county's top cultural bureaucrat calculates, "Typically our funds are a very small percentage of an organization's budget. On average county funds comprise under five percent of an organization's total budget." Certain organizations might feel the pinch more than others. "The smaller groups may have more of a reliance on our funding," Spring admits, "until they can generate other funds or find other money."

However you do the math, the county's policy adds up to censorship, says John de Leon. "The most potent weapon the county has in chilling the rights of arts organizations is the threat of withdrawing funding," he argues. "That's a very dangerous thing the government is doing, and it is clearly having a chilling effect in his community."

The local ACLU has long been eager to challenge the ordinance in court. But as of yet, no one has stepped forward as a plaintiff. On February 8 the board of the Miami-Dade chapter agreed informally to file a federal lawsuit on behalf of Cuban music promoter Debbie Ohanian, who planned to host a festival of island music at the county-owned American Airlines Arena. Ohanian suffered the sting of official and community censure when she presented the popular band Los Van Van at the Miami Arena in November 1999. "It's a full-time job," says Ohanian of the prospect of filing a federal law suit. "It takes over your life." As of yet the promoter has taken no formal action.

Speaking to local arts promoters and presenters, New Times learned not many are ready to brave the consequences of taking a stand. While county officials have responded to the ordinance with haphazard enforcement and convenient waivers for fat cats, arts groups have demonstrated a shaky understanding of the local law. Rather than challenge the legality of the ordinance itself, the culture brokers have learned to dodge the restrictions. New Times asked if anyone was willing to fight to reclaim our constitutional rights.


Did You Know?
Ignorance of the ordinance is no protection!

The Cuba affidavit that companies, promoters, and presenters must sign is much broader than most people realize. "One of the biggest misconceptions I've heard talking to other people who have signed the affidavit," observes Niurca Marquez, associate director of Artemis Performance Network, "is that the Cuba ordinance only means 'we can't pay for someone coming from Cuba.' Or, 'I just can't use county funds to pay for someone coming from Cuba.' I think people really haven't looked at the fine print. Then you have your event and you've violated the ordinance without even knowing it."

•In 1997 the Miami Book Fair International hosted a reading by Cuban author José Antonio Ponte. Executive director Alina Interian explains, "In my belief I was not doing anything wrong under the ordinance. We presented a writer who had a book published in Miami, and the book was prohibited in Cuba. The writer resided in Cuba, but there was no business being contracted with Cuba."

Oops! Even though Ponte might be considered a dissident and the Cuban government was not directly involved, his appearance constitutes "a transaction in which a Cuban national ... has an interest" and violates item number two of the Cuba affidavit.

•In 1998 the Spanish-language theater Teatro La Ma Teodora, which receives 50 percent of its funding from the county, presented Delirio Habanero. The theater group paid ESGAE, a publishing association located in Spain, for the right to produce the play by acclaimed Cuban author Alberto Pedro. The company performed it at the Ibero-American Theater Festival in Cadiz, Spain. Also participating in the festival were the Cuba-based troupes Teatro Buendia and Teatro Caribeño.

Double oops!La Ma Teodora committed two violations when it brought down the house in Cadiz. By paying for the rights to produce the Cuban play, the Little Havana thespians violated point three on the Cuba affidavit. By performing in an international festival with Cuban artists, La Ma Teodora also violated point five.

•Recently the Miami Light Project hosted a panel, "Nurturing an Independent Film Community," at the Filmmakers Workshop using county funds. Indie heavyweights such as Patricia Boero, director of international programs at the prestigious Sundance Institute, and Larry Meistrich, CEO of Shooting Gallery, spoke frankly about the challenges facing independent filmmakers in Miami. The subject of Cuba never came up. Sundance supports Cuban filmmakers through its international programs, however.

Oops! Even though Boero's Cuban connections had no relevance to the panel, by inviting her Miami Light Project subcontracted with a "person or entity that does business with Cuba as provided in one through four" (on the affidavit), and violates affidavit item number five.

•For six years Alejandro Rios has sated his passion for movies made in Cuba by curating the Cuban Film Series at the Wolfson Campus Auditorium of Miami-Dade Community College. MDCC provides no support other than the space. Rios pays no money for the films. Admission is free. Cuban directors send him their work independent of the state-run film institute, ICAIC. "They get it to me somehow," Rios explains, "because this is the only way they can get their work shown in Miami." Rios says the series, which includes many films critical of the Castro regime, "is not looked well upon by the Cuban government." Rios seeks no further funding for the series out of consideration for the delicate political position of the college. "I would sacrifice anything," he says earnestly, "before I would jeopardize the mission of MDCC, which is to provide affordable, quality education to as many students as possible."

Oops! Even though the Cuban Film Series receives no money from either the county or the college, Rios is an employee of MDCC, and the college provides the means to screen the films. Screening the films constitutes a "transaction in which a Cuban national ... has an interest." And other programs and departments within MDCC do receive county funds. The college as a single entity violates Cuba affidavit item number four.


Who Is Exempt?
"The Board of County Commissioners may waive the requirements ... [if] the transaction is necessary for the operation of the County, or for the health, safety, welfare, economic benefit, or well-being of the public." -- from the county's Cuba ordinance
•Translation: Companies with deep pockets, including air carriers that fly to and from Miami International Airport (most notably American Airlines), and AT&T Communications.

Who Is Not Exempt?
Educational institutions, cultural organizations, and arts groups.


Side By Side By Apartheid
A Comparison of the sanctions

Antiapartheid

1) Travel: Potential contractors were not banned from traveling to South Africa.

2) Cultural exchanges: No ban. South African scholars and artists frequently visited the United States during the apartheid regim and made their case against the oppressive government.

3) Nationals: The county could engage in contracts with South African nationals and with companies who held contracts with individual citizens.

Cuba Ordinance

1) Travel: Anyone who has traveled to Cuba in the past ten years is disqualified from entering into a contract with the county.

2) Cultural exchanges: Banned. Cultural institutions that receive money from the county are forbidden from bringing artists to Miami-Dade County, even if their views differ from the communist regime's.

3) Nationals: The U.S. State Department considers all Cuban nationals to be employees of the Cuban government. While the U.S. embargo exempts artists and scholars, the county ordinance does not, making all artists, musicians, and scholars de facto employees of the Castro regime.

Note: Because the Cuba ordinance goes beyond federal law in its treatment of arts organizations, the ACLU argues the federal courts would find it violates the First Amendment and contradicts the Berman Amendment to the Cuban Trade Embargo, which allows cultural exchanges.


The Long Arm of the Cuba Affidavit
For cultural exchanges, numbers two and five are the most crucial.

Number two: Arts organizations funded by Miami-Dade County violate this prohibition when they bring a Cuban artist or scholar to perform locally, explains Assistant County Attorney Bob Cuevas. Even when the artist or scholar receives no payment, the group engages in what the county considers a "transaction with a Cuban national" and runs afoul of the ordinance.

Number five: "You can't contract with an entity that does direct business with Cuba," says the county attorney. Arts groups violate this prohibition in two ways: by using a third party to contract Cuban artists, such as a booking agency based in Mexico; and by conducting a transaction with a third party that does business in Cuba in ways unrelated to the group, by inviting a speaker who works with Cuban nationals or performing a play in a festival that also features Cuban nationals.

Note: William T. Martinez, an attorney who specializes in obtaining visas for Cuban musical groups that play in the United States, criticizes the ordinance. He says federal law not only allows Cuban artists to appear in this country, but further allows for them to be compensated for transportation, lodging, and a per diem. The U.S. government considers these payments to be the costs related to cultural exchanges and not business transactions, says Martinez. (from relocation of major events)


"People keep saying all this money goes back to Castro. What they don't realize is these musicians don't take one penny back. They spend everything they have at Target, Toys R Us, and Sears. And God forbid there's a special on VCRs at Wal-Mart; they clean the whole place out. It's really a big boost for the local economy." -- promoter Debbie Ohanian

Estimated losses

MIDEM Music Conference: $20 million

Junior Pan Am Track and Field Championships: prestige

2007 Pan American Games: $130 million

2012 Summer Olympics: pipe dreams

Latin Grammy Awards: $40 million

Total Gains: $190 million

Estimated potential gains
(from shopping sprees by commodity-starved Cuban musicians, such as those who played here this year, listed below)
Issac Delgado (3 VCRS, 2 microwaves, 1 CD player): $ 821

Paulito FG y Su Elite (2 DVD players, Vuarnet sunglasses, 8 Casio watches): $ 1100

Charanga Habanera (6 pairs of Nike shoes, 4 Fubu Caps; 6 Fila sweat suits): $ 1354

NG La Banda (12 cell phones, 30 beepers, 4 PlayStations ): $ 1250

Los Van Van (titanium hubcaps; Santería couture; 6 I-Choose-You Pikachus): $ 6000

Bamboleo (2 electric clippers, 2 Bebe dresses): $ 423

TOTAL: $ 10,948

***Very few Cubans, artists or otherwise, have cash to burn. But new laws under a Castro regime desperate to keep stars from defecting have allowed musicians to keep a bigger cut of their earnings. What they're spending here, they're making elsewhere. By knocking out the ordinance, Miami-Dade County might end up taking more money out of circulation in the socialist economy than hosting the musicians would put in.


TIMELINE

October 1917 Congress passes the Trading with the Enemy Act, which prevents the government or a citizen from an enemy country from owning property or assets in the United States.

February 1962 President Kennedy proclaims the Cuban Trade Embargo. It prohibits all trade with Cuba, including music and culture.

March 1987 The Metro-Dade Commission passes the South Africa ordinance. It bans the county from purchasing goods of South African origin or signing contracts with companies that do business in South Africa.

August 1988 Congress passes the Berman Amendment. It permits cultural exchanges between the United States and Cuba, including the sale of Cuban books, records, and tapes.

July 1992 Metro-Dade commissioners pass a resolution forbidding the county from contracting with any U.S. company whose foreign subsidiary trades with the communist nation. It requires representatives of companies seeking county contracts to sign sworn statements.

October 1992 Congress passes the Cuban Democracy Act, which tightens the embargo by including the subsidiaries of U.S. corporations that operate in foreign countries.

July 1993 County commissioners enact a law mirroring the Cuban Democracy Act. It gives the county authority to revoke business licenses of any entity found violating the embargo. The law passes a court challenge.

March 1996 Congress passes the Cuba Liberty and Democratic Solidarity Act (known as the Helms-Burton law), which forbids business executives from any country, who do business on or with American property confiscated by Castro, from entering the United States.

July 1996 County commissioners pass a broad law barring any company that does business with Cuba from obtaining a contract with Metro-Dade or using county facilities. All such organizations must sign a Cuba affidavit.

February 2000 County commissioners clarify the Cuba affidavit policy by requiring paperwork to be submitted before a company bids to work on a project.


Final Answer
New Times talked to heads of cultural organizations that are affected by the Cuba ordinance. Few said they were willing to challenge the local law. Others said they could not afford, economically or politically, to file the lawsuit that would be required to overturn this policy in a court of law.

Laura Quinlan
executive director of the Rhythm Foundation "I think it would be perceived as insensitive for some gringos to push the issue. We're a small organization, and we rely on county funds to operate. We try to represent music that is meaningful to the South Florida community from all over the world. The issue is so politicized that if you become involved, it overshadows everything else you do. Most of us care so deeply about our own organizations that we don't want to give up what we do to focus on this one issue."

Reason won't challenge ordinance: Can't risk funding Mitchell Kaplan
founder of the Miami Book Fair International and owner of Books & Books

"To be frank, it is not an issue that I was very cognizant of. As an individual I think anything that has a chilling effect on free speech is a bad thing. I've felt that's one of the reasons for being in the book business, which is all about free expression. I would support the ACLU with a situation that arose. As for actually provoking a controversy, that's an unfair place to put an arts organization."

Reason won't challenge ordinance: Can't act independently


Niurca Marquez
associate director of Artemis Performance Network "What the ordinance doesn't recognize is that there are people in Cuba who are dissidents and who are not officially addressed as such, but whose message you can see in the form and the material they present. People say that real dissidents aren't allowed to leave the island. If you look at some of these artists, the message against the regime is so evident. Some of them are in positions where they might actually be able to leave and present their work here.

"People ask why we don't challenge the law. We're just not in the place to do that. Fifty percent of the grants we receive comes from the county. That's 25 percent of our total budget. With that money we're doing so much for the Hispanic artists that are here. We're such a young organization that if we challenged the ordinance, we would be practically burning all of our bridges before we even start."

Reason won't challenge ordinance: Can't risk funding


Marlene Urbay
conductor and artistic director of the Florida Chamber Orchestra

Marlene Urbay "Since we're talking about tax money that everyone pays, I agree that the multicultural community here in Miami should not have to sacrifice to pay Cuban artists and the Cuban government.

"At the same time, we left Cuba so that we could have the liberty to think freely. We should not go to the opposite extreme here. I don't believe people should spit on other people or throw tomatoes, because that's exactly what happens in Cuba. The ordinance mixes up politics and art. I made the decision to come here. Others made the decision to stay. That doesn't mean that, as artists, we should not share the same stage."

Reason won't challenge ordinance: Doesn't want to give money to Castro


Elizabeth Boone
executive director for the Miami Light Project

Elizabeth Boone "I agree with the ACLU that it's unconstitutional to prohibit the promotion of culture, art, and education. Why does American Airlines have an exemption from the county ordinance? That's ludicrous. Why is art, culture, and education not okay, when everyone would agree that the free exchange of culture and ideas is where democracy begins?

"I'm not in a position to threaten the financial stability of my organization over this issue. It would represent a serious loss to the Miami Light Project. The ACLU talked to me about a year and a half ago. They want to challenge the constitutionality of the statements in the resolution. So we spoke to the county attorney and to the executive director of cultural affairs. We talked about the steps and the risks. Our board made the determination that the risks would be too great."

Reason won't challenge ordinance: Can't risk funding


Andrea Seidel
director of INDAMI (Intercultural Dance and Music Institute) at Florida International University

"I think that academic freedom to express diverse points of view is at the heart of any university. You may decide that you want to talk to the director of the Latin American and Caribbean Center. You can tell him that I preferred not to speak on the issue independently."

Reason won't challenge ordinance: Can't act independently Eduardo Gamarra
director of the Latin American and Caribbean Centerat Florida International University

New Times caught Gamarra in the midst of the conflict over LACC's reception for 5000 scholars from the prestigious Latin American Studies Conference, including some Cubans. County commissioners had threatened to cancel the reception. A technicality saved the party: FIU neglected to sign the Cuba affidavit as part of the contract for the event.

"Sometimes I wonder what country we live in. I'm upset. I'm incensed. Sometimes I think it's the Soviet Union in the middle of the 1930s. I guess it's just North Havana. This seems like a good time for a court challenge, but I can't do that as an individual. That would involve the university lawyers."

Reason won't challenge ordinance: Can't act independently


Alejandro Rios
curator of Cuban Film Series at Miami-Dade Community College

Alejandro Rios "Since I lived under a dictatorship for so many years, I have to be against censorship on principle. My primary interest is Cuban cinema. Since it's impossible for me to go to Cuba to see what they are producing there, I bring the films here.

"At the same time, if more Cuban artists or scholars could come here, they would not be able to freely express their ideas, because they come as representatives of a socialist project. They wouldn't be able to say whatever they want. Forget about it. If they really could, if there would be no danger waiting for them at home or for their families, that would be different -- but that's not how it happens....

"I don't think the ordinance really hurts Castro. There was a very strong Cuban dictator, Machado, who said, "No one is going to knock me down with a few pieces of paper." We're talking about culture, about art. They always want to attack the weakest link. If I were independent, I would challenge the ordinance. But MDCC is an institution whose primary mission is not Cuban culture or the Cuban film series."

Reason won't challenge ordinance: Can't act independently


Hugo Cancio
independent promoter

Hugo Cancio "I am against the county ordinance. I lobby against it, and I will continue to lobby against it, but I will not promote an event that will create a controversy. I'm a part of this community, and I love Miami, and I want to be sympathetic with the pain that so many people here have suffered. There are a lot of Cubans in the exile community who are hurt for legitimate reasons, including my own father, who stops talking to me whenever he hears me say something that he feels is pro-Castro.

"If I would have been affected personally by that county ordinance, I would have fought it. I was not that aware with respect to what we could do about [it]. Now that I am, I'll probably take some steps to change it. I'm here to do what I think is right. I love Cuban music. And if Debbie [Ohanian] were to call me and say, "Hugo, let's do it together,' all the better. I will do it."

Reason won't challenge ordinance: Give him time too Debbie Ohanian
Starfish
nightclub owner and promoter of Cuban bands

Debbie Ohanian "The ordinance gives the county a level of hostility that makes it difficult even for people who are not involved with the county. I can't use a county facility because it would be illegal. I looked around and said, "What do we have to do to get rid of this law?'" I've asked a few people, and they said all it takes is one person to challenge it. But it's more complicated than I thought, here and there. I'm not avoiding the issue. I have the support of the ACLU, and I definitely plan to go forward with a challenge of the ordinance. It's just a matter of time."

Reason won't challenge ordinance: Give her time


Alberto Sarrain
executive director of Teatro La Ma Teodora

Alberto Sarrain "The Constitution guarantees me the right to produce what I want. What the county regulations prohibit me from doing, I will do with the other 50 percent I get from other sources. The affidavit strikes me as one of the most absurd things I've ever seen in my life. If it prohibits me from performing with [Cuban theater groups] Teatro Buendia and Teatro Caribe'o in Cadiz [Spain], then it's a Pinochet ordinance.

"No one is calling to complain that we are putting on a Cuban play because no one pays any attention to Spanish-language theater. I don't think even the ACLU would bother with us. I'm going to go on doing exactly what I want to do. I'm ready for them to take me to jail, if it comes to that. Or they can take the money away. I've been doing theater in exile for 21 years, and I've only received money for the last two years. I'm not giving up anything."

Reason won't challenge ordinance: Try him

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