Bannum, Inc. v. City of Fort Lauderdale, Fla., 86-6926-CIV-EPS.

• Decision Date: 04 December 1986
• Docket Number: No. 86-6926-CIV-EPS.,86-6926-CIV-EPS.
• Citation: 657 F. Supp. 735
• Parties: BANNUM, INC. et al., Plaintiffs, v. CITY OF FORT LAUDERDALE, FLORIDA, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

657 F. Supp. 735

BANNUM, INC. et al., Plaintiffs, v. CITY OF FORT LAUDERDALE, FLORIDA, et al., Defendants.

No. 86-6926-CIV-EPS.

United States District Court, S.D. Florida, Miami Division.

December 4, 1986.

Scott Wendelsdorf, Marvin R. O'Koon, Louisville, Ky., Frank Amigo, Plantation, Fla., for plaintiffs.

Robert H. Schwartz, Ft. Lauderdale, Fla., for defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

SPELLMAN, District Judge.

This CAUSE came before the Court on Plaintiffs' motion for preliminary injunction. This Court heard an emergency motion for a temporary restraining order on November 20, 1986, where this Court informed the Plaintiffs that without evidence showing that they had a substantial likelihood of succeeding on the merits, this Court was inclined to deny the motion. Because the Plaintiff was unable to make such a showing at the hearing, this Court granted the Plaintiff an opportunity to provide affidavits showing the injury that it has suffered and its potential for redressibility should the case proceed to trial. After reviewing these materials and the Plaintiffs' restyled motion for preliminary injunction, this Court is still of the opinion that the Plaintiff is unable at this time, nor is the situation likely to improve at trial, to satisfy the four fundamental elements enunciated in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974) for the granting of a preliminary injunction. It is hereby

ORDERED AND ADJUDGED that the motion for a preliminary injunction is DENIED. This Court, however, in order to provide maximum protection to the interests the Plaintiffs may legitimately have in the disputed property site, will accelerate the case on the merits for final review and schedule trial within 60 days from the filing of the answer.

FACTUAL BACKGROUND

Although the case came to this Court under emergency circumstances, it was certainly not one in which its emotive impact upon the Court, the parties and the citizens of Fort Lauderdale went unnoticed. The Plaintiffs' contract with the Department of Justice and its Bureau of Prisons for the creation of residential facilities that supervise persons in custody who are at the twilight of their prison sentences and whom the Department has determined to be low risk, nonviolent individuals. In essence, the Plaintiffs have located around the country, renting apartment facilities in residential communities that act as halfway homes between the prison and the outside world. The Plaintiffs arrange for the residents to seek employment during the workday while returning to the facility at night, remaining there until the next day. The residential centers also provide counseling services for those in its care.

The Plaintiffs have attempted to gain zoning permission for the operation of one of their facilities in Fort Lauderdale, Florida. Originally the Plaintiffs contracted with the Areca Palms Motel in Fort Lauderdale, Florida, and remained there for one year until the Department of Justice, fearing the repercussions from local government due to the political maneuverings of neighborhood groups, requested that the Plaintiffs abandon their operations at the motel, move the residents out, and seek an alternative site in the City of Fort Lauderdale that would meet the approval of the local zoning board. Despite repeated attempts to gain such approval for a new site located in an area where there are multi-family residences as part of a general neighborhood zoning plan, the City has been unwilling to grant such a use permit, and instead has classified these centers as "custodial facilities" and as "residential rehabilitation centers."

Plaintiff seeks this preliminary injunction because the Justice Department has recently expressed some insecurity about the ability of the Plaintiff to accomplish the stated purposes of their agreement. The Government now seemingly lacks confidence in the Plaintiffs' ability to go forward with the housing and supervision of affected residents. The Bureau of Prisons sent the Plaintiffs a "cure notice," a fairly routine matter when a vendor under contract with the government is in jeopardy of breach. Before responding, the Plaintiffs sought equitable relief in asking this Court to require the City of Fort Lauderdale to allow the project to remain in the disputed area, thereby, giving the Bureau of Prisons the proper assurances that the Plaintiffs would fulfill their contractual obligations.

LEGAL CONCLUSIONS MILITATING AGAINST THE USE OF EQUITABLE RELIEF IN THIS CASE

Plaintiffs have raised several constitutional challenges pursuant to 42 U.S.C. § 1983, arguing that the City's reluctance to grant a use permit for their facility has denied the Plaintiffs valuable civil rights in contravention of existing law. Because this motion is not really concerned with the merits of this case, but rather with whether the Plaintiffs are entitled to injunctive relief, this Court will first address the difficulties that the Plaintiffs have had in meeting the requirements of the Canal Authority criteria. See Sierra On-Line, Inc. v. Phoenix Software, 739 F.2d 1415, 1422 (9th Cir.1984).

The Plaintiffs are aware that equitable remedies such as injunctive relief are not liberally granted, but are rather saved for those extraordinary circumstances when drastic relief is necessary to preserve the status quo. Cate v. Oldham, 707 F.2d 1176 (11th Cir.1983); Baker v. School Bd. of Marion, 487 F.Supp. 380, 382 (M.D. Fla.1980); Schrank v. Bliss, 412 F.Supp. 28, 34 (M.D.Fla.1976). Indeed, courts normally should not interfere with the relative positions of the parties unless, as a threshold matter, the relief sought is attempting to preserve the status quo. Smith Intern, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1578 (Fed.Cir.), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983); Louis v. Meissner, 530 F.Supp. 924, 925-26 (S.D. Fla.1981).

The Plaintiffs in this case cannot even satisfy the first level of inquiry that a court must conduct before taking a closer look at the elements necessary to establish a preliminary injunction. If the Plaintiffs had chosen not to abandon the Areca Palms Motel and instead held their ground with residents intact, this Court may have decided this motion differently. As far as this Court can determine, there is no status quo that a court exercising its equitable powers can even seek to preserve. At least in the Areca Palms Motel situation, the Plaintiffs had an existing lease with the motel and the residents were in place without incident for over one year. A zoning problem under these circumstances would of necessity force a court to consider whether equity requires that the residents remain in the motel and allow for the continued enforcement of the lease until a court can reach a final resolution on the merits.

No such condition exists under these facts, however. The Plaintiffs were not under a lease, but were still in the process of negotiating its signing pending zoning approval. Furthermore, and more importantly, there were no residents at the affected property site, so that this Court is not concerned with the displacement of indigent or otherwise homeless people. The Plaintiffs obviously believe that equitable remedies contemplate more than just the preservation of the status quo, but should also extend to more extreme forms of affirmative relief. In this case there is no status quo to preserve, only the Plaintiffs' hope that this Court will force the City of Fort Lauderdale to grant a use permit for this project, and in doing so, place the insecurities...