Court rules in favor of Miami Beach, says votes on homeless tax won’t be counted

A judge has ruled against 10 Miami Beach voters who challenged the City Commission’s recent decision to remove a referendum from the ballot.

The ruling came after the Miami Beach City Commission voted on Wednesday to repeal Referendum 8, a Nov. 5 ballot question on whether to implement a 1% food and beverage tax to support homelessness and domestic abuse services.

Referendum 8 will still appear on ballots, which have already been printed, but voters will be instructed not to vote on the measure. Any votes on it will not count.

In his ruling, Circuit Court Judge Antonio Arzola expressed concern about the timing of the commission’s decision to repeal Referendum 8. Nevertheless, he maintained, the City Commission had the authority to do so.

The plaintiffs had not suffered irreparable harm, Arzola determined, so he said that he could not grant them an injunction against their local government. But while voters aren’t able to vote on the measure this election cycle, he added, “they may well be able to vote on it in a future election” by petitioning for it to be reintroduced.

The plaintiffs, all Miami Beach voters, sought a court injunction to nullify the City Commission’s decision. With the election already underway, the plaintiffs’ attorney, Gerald Greenberg, argued in court Friday that the repeal was unprecedented, unlawful and disenfranchised voters.

“For the first time in the history of Florida, an election would be called off while it was already happening,” said Greenberg. “This is not about the right or wrong of the tax. This is a democracy question.”

Miami Beach Deputy City Attorney Henry Hunnefeld, who represented the City Commission, countered that the referendum — and whether or not to put it on the ballot — is a political question. As such, argued Hunnefeld, it was the commission’s prerogative to scrap the ballot question. The courts, he said, should stay out of it.

“We’re dealing with the will of the commission, the elected body of the city of Miami Beach,” said Hunnefeld, adding, “They’ve determined that they don’t want this issue to go forward.”

Bad timing?

Timing is everything in this case. In their official complaint, the plaintiffs referenced the Miami Beach City Commission’s effort to remove the ballot question six days before the Nov. 5 general election and “weeks after early voting began and approximately 20,000 residents had already voted.”

Votes that have already been cast will be thrown out, argued Greenberg, who questioned why the City Commission waited until just days before the election to scrap the referendum.

The city’s response: A new commission was elected last November, after a July 2023 resolution to vote on the tax this year took effect. Since then, said the city, the commission simply hasn’t had time to address the issue. David Suarez, one of the commissioners who took office last year and has opposed the tax, said he was unaware that Referendum 8 was even on the ballot.

Regardless, Hunnefeld asserted, and the judge agreed, that because it was the commission that passed the resolution calling for the referendum in the first place, the commission could pass a resolution repealing the referendum.

A logistical headache

Both sides agreed that informing voters of any change will be a logistical headache.

Ballots have already been printed, meaning the question will appear regardless. Greenberg, the plaintiffs’ lawyer, said that if the Elections Department puts up notices urging voters not to vote on Referendum 8, which it will now do, it could cause confusion in such a big-ticket election.

Hunnefeld made a similar argument, which Arzola echoed in his ruling, but from the opposite opinion. Citing Miami Beach’s social media platforms, television channel and the Herald’s coverage of the repeal, the city contended that many voters had already been informed of the referendum’s cancellation. To put it back on the ballot, he said, would cause further confusion.

Background

In a non-binding 2021 straw poll, 53% of Miami Beach voters asked the City Commission to urge the state legislature to allow Miami Beach to levy a 1% food and beverage tax to fund homeless and domestic violence services.

The Florida Legislature agreed. In response, the Miami Beach City Commission passed a resolution last November calling for the tax to go to a vote during the Nov. 5, 2024, general election.

The 1% tax would apply to all food and beverage sales at businesses that sell alcohol for on-site consumption and whose annual revenue exceeds $400,000. Hotels and motels are excluded from the tax.

Bal Harbour will vote on the measure.

Ron Book, chairman of the Homeless Trust, Miami-Dade’s homeless services agency, estimates that the tax would generate upwards of $10 million annually. Eighty-five percent of that money would go to the Homeless Trust, said Book, with the remaining 15% going to domestic violence shelters.

That sum, Book told the Herald’s Editorial Board, would be enough to get “everyone off the streets who’s willing to come off” in up to two years.

Commissioners Suarez, Kristen Rosen Gonzalez and Joseph Magazin, as well as Mayor Steven Meiner, opposed the measure, expressing concerns about the messaging pushed by a political action committee surrounding the ballot question.

Suarez asserted that the ballot question was intentionally misleading and aimed to “take advantage of taxpayer money” by transferring it from Miami Beach taxpayers to an “unelected county organization,” referring to the Homeless Trust.

“I find it enormously unfortunate,” Book said of the ruling, adding that the plaintiffs were leaning against appealing the decision due to time constraints.

But, said the Trust’s chairman, “we’ll attempt to work with the city, and we’ll try to see if we can find a better way to get this back on the ballot” in the future.