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Posted November 28, 2003 by publisher in US Embargo

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BY MICHAEL VASQUEZ | .(JavaScript must be enabled to view this email address) | Miami Herald

Miami loses a lawsuit filed by the promoter who brought the controversial Cuban band Los Van Van to the city in 1999.

Saying the required payment had a ‘‘chilling effect’’ on free speech, a federal judge has ordered the city of Miami to refund more than $36,000 in concert security costs charged to a controversial band reviled by some in the Cuban exile community.

Four years ago, a Miami Arena appearance by Los Van Van, one of Cuba’s most popular musical groups, drew protesters by the hundreds. Although the group’s songs are not overtly political, some exiles view the band—whose name derives from a revolutionary slogan—as a mouthpiece for Communist leader Fidel Castro.

The night of the concert, tensions between concertgoers and nearby protesters flared, with some protesters heaving rocks, bottles or batteries to go with their chants of “Communist!’’

Miami police, some in riot gear, made sure the show went on. But the heavy police presence led to another debate, one that dragged on long after arguments over Los Van Van’s alleged political leanings died down: Who should pay for all those officers?

Miami officials billed the arena, which in turn billed the band. Band promoter Debra Ohanian was forced beforehand to accept such an agreement or lose her venue.

PAID AND SUED

Ohanian grudgingly paid but later sued the city, saying the roughly $36,000 cost amounted to a tax on unpopular speech. This week, a federal judge agreed.

Judge Joan Lenard, in a ruling Tuesday, said that although the city did not directly bill Ohanian for security costs, city officials knew that the arena would pass the costs on to her.

For that, Lenar wrote, the city should be held responsible and shown that “the First Amendment is alive and well—especially in the city of Miami.’‘

Miami officials acknowledged in court that their actions were unconstitutional. The city’s defense hinged on largely technical grounds—that forcing Ohanian to pay or lose her show venue was not an official city policy. As a result, the city argued, it should not have to reimburse her.

Miami City Commissioner Tom�s Regalado, who joined the large street crowds to protest against Los Van Van in 1999, said the city had to some extent suspected it would come out on the losing end of the lawsuit.

Still, Regalado stood by the city’s decision to fight Ohanian’s demand for her money back, saying it amounted to a “moral issue.’‘

‘‘It sends a message,’’ Regalado said. “You want to bring an event that offends one part of the community, you’ve got to be ready to go to court.’‘

City Attorney Alex Vilarello could not be reached Thursday.

HIGH FEES

Barring a successful appeal, the city is likely to end up also paying court costs and Ohanian’s attorney’s fees. Given that the court battle dragged on for several years, those fees may well be more than the security costs that sparked the lawsuit in the first place.

‘‘I wish they had gotten the message a long time ago and reimbursed her,’’ said Howard Simon, executive director of the American Civil Liberties Union of Florida, which represented Ohanian in the case.

Ohanian criticized local politicians for expecting her to pay to police demonstrations partially inspired by their calls to action. In the days leading up to Los Van Van’s concert, numerous local politicians made the media rounds challenging the group’s right to perform. Then-Miami Mayor Joe Carollo called Los Van Van “the official communist band of Fidel Castro.’‘

‘‘They incited people,’’ Ohanian said.

Regalado denied that politicians were responsible for the protests, saying even if they had kept mum, “People would have gone.’‘

In the end, the concert attracted about 2,500 attendees, less than half of what Ohanian said she had expected. She said the controversy scared many potential ticket buyers away.

‘‘Basically, when I get my money back from the city, I will have broken even,’’ Ohanian said.

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