Former mayoral candidate Sloan Bashinsky gets feisty and refuses to back down

Between 6 and 11:30 tonight, the Key West City Commission handled so many items with so many presenters, it was difficult to keep score. Consequently, this writer won't even try to touch on all of them. Among them was the property on Flagler, now used as St. Mary's Star of the Sea Soup Kitchen and owned by the Miami Archdiocese, that Samuel's House and Kathy's Hope Director Elmira Leto wants to turn into affordable housing for men's and family units. The commission voted unanimously to support her efforts to buy the property as is if she can get the funding for the project from the Land Authority. (The property cannot be altered until after it is sold by the Archdiocese.)

Commissioner Mark Rossi asked City Attorney Shawn Smith for an update on Admiral's Cut and was told by Smith he had met with the eminent domain attorney last week and told him the city intended to drop people off on the other side of the cut and told him, "What I want to know from you is what's the number, your price to represent us in this eminent domain matter."

Rossi said, "The year's coming to an end and I will let it go now, but by the end of 2010, something has to be done because this is the main component of the improvements to the waterfront."

Commissioner Teri Johnston asked for an update of the Bahama Village Community Land Trust audit and was told by Smith they are looking for a date to come before the commission. "I don't think a 2^nd meeting in December is too unreasonable." This was approved by the commission, though historically, there is only one meeting in December.

Commissioner Jimmy Weekley asked the commission to urge President Barack Obama to keep his promise to get the 'don't ask, don't tell' rule for the military overturned. One of several defenders of this resolution was local Attorney Wayne Larue Smith who said, as a gay man who did not disclose his identity to the military, he served many years in the United States Air Force and was awarded several honors during those years of active service. He told the story of a friend who after many honorable and courageous years in the military, did eventually disclose his gay identity and was immediately discharged from the service and expressed, rightfully, how wrong this was. The resolution carried by unanimous vote, as did the resolution to urge the repeal of the gay marriage ban.

Finally around 11:30, the debate began about approving a sightseeing franchise agreement. Prior to that, at 11:00, the commission voted unanimously to extend the meeting one more hour to midnight.

CityView Trolleys Attorney Michael Barnes told the commission, "No operator wants to come in to create a problem for the citizens. We have had HTA (Historic Tours of America) here for 50 years. There were no meetings, no studies — they just did it. When they wanted to add more vehicles they just did that, as well. This is an unfair advantage."

Barnes, the attorney who took the city to court over the exclusion of Safari Duck Tours, which cost the city $8 million this past year when the case was settled, said, "To me, this is Ducks déjà vu. The Ducks case showed you what the law was. There were no studies."

He told the commissioners they had options: "1) Let CityView go back to Boston. 2) They take a franchise that won't work and 3) just sue you. Or there is another option. You can do what's right instead of doing what HTA tells you is right."

CityView Trolley's President, Mr. Thomas, and 1/3 owner Greg Wythe, also came to the podium in defense of their company and to tell the commission the parameters they want to approve tonight were not fair, especially the buffer zones. Thomas told them, "I don't know of one incident with HTA in Boston. We share the same stops, same stands — friendly competitive spirit. The way the ordinance is written, it makes it very difficult to operate in Key West. The application fee of $7000 — never asked of HTA. The $11 million liability Greg just mentioned too exorbitant. Traffic studies cost $40-50,000."

It was Ed Swift (co-owner HTA) who appeared at the podium next to say, "It seems to me the commission is considering policy decisions done under the shadow or threat of lawsuit. The consequences of your actions and impact on our streets is a forever thing.

"I would ask that Shawn (City Attorney Smith) would consider a reasonable buffer for safety reasons — for lack of animosity or in-fighting between companies. I would ask your city attorney to get a 3^rd opinion — what you do cannot be undone and you'll have many more companies come in to ask for franchises."

HTA Co-owner Chris Belland followed Swift. "You've heard Mr. White and Mr. Thomas say there's no problem in Boston — wrong — it is a contentious situation. The ranking by the customers nationwide puts Old Town Trolleys (HTA)at #8 and CityView Trolleys at #245.There's a reason. I can assure you without separation, you will have the same battles as in Boston."

Now it was time for some fireworks and Sloan Bashinsky provided them."I was here two weeks ago. I've read the papers for years and I've yet to see one ounce of remorse from Mr. Swift for what happened to this city for their behalf. I'd like to see them present a check for $8 million to the city and I'd be more inclined to listen to them."

Pointing his finger at City Commissioner Jimmy Weekley, he said, "And you, Commissioner — you were part of this. Commissioner Weekley, you  should recuse yourself." (Hmm — he might be right about that, Jimmy. We've seen other commissioners like Rossi and Lopez recuse themselves when they had been remotely involved with an issue being voted upon.)

"Out of order," we heard, assuming it came from Mayor Craig Cates, but not certain.

"No!" answered Bashinsky, "Mr. Swift has asked for a 3^rd opinion. As a lawyer, I'm giving you one — think about whether you are willing to bring your own money to the table if we're sued again. Mr. Swift has a gun to your heads now — aiming a lawsuit at you. Make no mistake on this!"

This is the most heat we've heard in Old City Hall since former Commissioners Harry Bethel and Jose` Menendez left the dais!

Activist and environmentalist Christine Russell was next. "I don't have to tell you the court said this city allowed and encouraged a monopoly. With that said, I'd like to know if the city attorney can let us know how many vehicles should be on our streets. Is there a limit to the number of sight-seeing vehicles? Thank you."

Rossi asked, "Shawn, since the most contentious item is the 150-foot rule, I'd like your opinion." (He gave it to you last week but none of you would listen.)

Smith: "I said it last week — no barrier — I'm against it."

Rossi: "We strike the barrier rule, then, and the city manager says where each can be."

Smith: "Only with City Commission approval (the stops). Include establishment of routes in your main ordinance. Have an appeal process put into it. I don't think you create a study after an applicant has applied to the city, so strike that from the applicant's franchise agreement."

Commissioner Teri Johnston said, "First of all, thank you all for coming out tonight. Christine asked can we regulate. Yes, we can regulate how many vehicles per hour, we can regulate the noise, we have total control. We set up the regulations and let the companies decide if they want to come here."These words brought much applause from the hall which still had several people in attendance, despite the late hour.

She continued: "The Savannah ordinance does not have a buffer zone. 10 feet is valid for me, not a 150 foot so businesses can get along. I'd like to bring it back to the city commission only if the applicant appeals the city manager's decision or if it disrupts traffic or is injurious to citizens."

That part of the ordinance carried unanimously (to remove the buffer zone).

Rossi said, "I'd like it to state they all operate 365 days a year."

Smith: The language now is this. 1) The city manager, with input from the franchisers, shall designate stops for loading and unloading. 2) The city manager shall have authority to eliminate any stop if it disrupts traffic or is injurious to citizens. The franchiser may appeal within 3 days to the city commission to be heard at the next regular city commission meeting. 3) The company cannot transact ticket sales on the street. 4)The location of stops shall be clearly marked."

That part of the ordinance carried unanimously.

Swift returned to the podium."I'm asking for appellate right, also, if our existing stops are moved."

Smith: "5) Existing franchise has right of appeal, also."  This was also approved.

It was now 12:06 a.m. and Cates said, "Point of order — it's past midnight."

Rossi moved to extend the meeting to one more hour. Motion carried with Johnston and Lopez dissenting.

Johnston: (To much applause) "I'd move to adjourn the meeting." Unfortunately the other motion had already carried, but this writer was wishing it had not, as six straight hours was feeling like more than enough.

Smith: The city manager will have to have input from the police and fire departments, if there is a problem with a stop. The city manager shall mail a notice to any party within 300 feet of a problem stop and within 20 days of the notice mailing, the property owner may appeal decision."

Johnston: Clearly feeling the long day, she asked to everyone in general, "Is there any coffee in the house?" There was none.

Lopez, right behind her, "So that if this happens again, I propose we get a coffee maker and someone donate the coffee." Amen to that, Commissioner! One advantage to covering the meeting by TV!

Weekley said, "I want a moratorium on any more public vehicles." No takers on that.

Rossi moved for operations 365 days a year.

The motion failed with Johnston, Cates and Lopez dissenting.

Lopez: "We've heard from people about impact studies. What do we do? In the interest of quality of life, how do we protect it?"

Smith: "You deal with these folks here now and then require it afterward, so it won't prevent their coming in. You plan for the future, but you move on with the two applications, Ducks and CityView, and take that study language out of it." (Smith was making some wise moves tonight to avoid another lawsuit against the city.)

Johnston: "I'd like the application fees reduced to $5000."

Motion carried unanimously.

Johnston, again, asked, "On the minimum fee, what's realistic?"

Smith: "It is $7630/vehicle for HTA. John Murphy of Ducks has said $6000/vehicle. CityView pays $3000/vehicle. It is disproportionate to have a flat fee. I recommend a per vehicle fee, instead."

Gibson, who had been quieter than usual this late night, said, "We can make that 12 months, so they can pay per month, to make it easier."

Wardlow was for a flat fee for everyone.

Cates said, "The city attorney does not recommend that."

Johnston moved for $7500/vehicle with national CPI (Consumer Price Index which adjusts according to the cost of living adjustment) or 5% whichever is greater.

Weekley proposed it be paid quarterly.

At that, Assistant City Manager Mark Finigan moved to the podium to say, "I support the 5% per month and end of year $7500/vehicle. It would be a bookkeeping headache, otherwise.

The motion carried with Wardlow dissenting.

Cates proposed adjourning the meeting then (at 1 a.m.) and re-convening at 4:30 p.m. tomorrow. The motion carried with Gibson (who could not be present) dissenting.

Although it was a long meeting (seven hours), it was also a first for a city commission to approve an ordinance for competing sight-seeing tour companies since the landmark decision by the court that the monopoly by HTA violated anti-trust laws and still, until now, no other tour companies have been in competition with HTA's Conch Tour Trains and Old Town Trolleys.

November 18, 2009

City Attorney Shawn Smith said, as soon as the meeting came to order, "I recommend we adjourn now and postpone any action on the CityView franchise agreement until the regular December 3^rd meeting. I don't want anyone to challenge the agreement on the grounds there was no legal public notice."

The meeting was duly adjourned before it could begin. No doubt Wythe and Thomas were disappointed since they had wanted to be on the streets of Key West Thanksgiving; nonetheless, another wise move by Smith.