City of Miami Beach v. Kuoni Destination Mgmt., Inc., 3D11–637.

• Decision Date: 08 February 2012
• Docket Number: No. 3D11–637.,3D11–637.
• Parties: CITY OF MIAMI BEACH, Appellant, v. KUONI DESTINATION MANAGEMENT, INC., Ernesto Bertarelli, and Thomas Kramer, Appellees.
• Court: Florida District Court of Appeals

81 So.3d 530

CITY OF MIAMI BEACH, Appellant,
v.
KUONI DESTINATION MANAGEMENT, INC., Ernesto Bertarelli, and Thomas Kramer, Appellees.

No. 3D11–637.

District Court of Appeal of Florida, Third District.

Feb. 8, 2012.

[81 So.3d 530]

Holland & Knight, and Rodolfo Sorondo, Jr., Miami, and Christopher Bellows; Jose Smith, Miami Beach City Attorney, for appellant.

Greenberg Traurig, and Elliot H. Scherker, Barry L. Rothberg, and Christopher B. Carbot, Miami, for appellees.

[81 So.3d 531]

Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.

SUAREZ, J.

The City of Miami Beach (“City”) appeals a non-final order granting a temporary injunction in favor of the appellees, Kuoni Destination Management, Inc., Ernesto Bertarelli, and Thomas Kramer (“Kuoni”), enjoining the City from closing a private party alleged to have been in violation of section 142–109 of the Miami Beach Code, which prohibits commercial use of residential property. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(B). We determine the issue moot, decline to address the merits of the order granting the temporary injunction and remand to the circuit court to determine in the action pending below whether a residence rented for the purpose of a private party is in violation of the ordinance.

Kuoni entered into an agreement with Thomas Kramer whereby it paid $40,000.00 for the use of Kramer's residence on Star Island from Saturday, March 5, 2011, until Sunday, March 6, 2011, to serve as the location for a birthday party being produced for a client of Kuoni's with an expected 200 guests in attendance. The City sent a March 4, 2011 letter to Kuoni advising that it would be in violation of the Miami Beach Code, section 142–109,¹ prohibiting the use of

[81 So.3d 532]

residential property rented for purposes of a third-party host or a commercial event. On March 5, 2011, Kuoni brought an action for injunctive and declaratory relief against the City alleging that the limited commercial use was not barred by section 142–109, and that irreparable injury would result if the party were not allowed to go forward. Kuoni moved for a temporary injunction which the trial court granted on March 5, 2011. The party took place as planned. This non-final appeal ensued from the order granting the temporary injunction against the City, allowing the party to take place. A counterclaim filed by the City for a permanent injunction against Thomas Kramer is pending below.

The standard of review on an order granting a temporary injunction is abuse of discretion. Wise v. Schmidek, 649 So.2d 336 (Fla. 3d DCA 1995) (holding that an appellate court will not disturb trial court's discretion in granting, denying, dissolving, or modifying an injunction unless clear abuse of discretion is demonstrated). If a legal principle is involved, the standard of review is de novo. Lawnwood Med. Ctr., Inc. v. Desai, 54 So.3d 1027 (Fla. 4th DCA 2011).

The requirements for establishing the right to a temporary injunction are: the likelihood of irreparable harm; the unavailability of an adequate remedy at law; the substantial likelihood of success on the merits; the threatened injury to the petitioner outweighs the possible harm to the respondent; and the granting of the temporary injunction will not disserve the public interest. Graham v. Edwards, 472 So.2d 803, 806 (Fla. 3d DCA 1985). A party seeking to restrain enforcement of a municipal ordinance on grounds of irreparable injury must show sufficient facts so clearly that a trial court may determine the extent of injury and grant relief by injunction if justified. Egan v. City of Miami, 130 Fla. 465, 178 So. 132, 133 (1938). We find the present issue of irreparable injury to be moot as the birthday party in question took place as planned. Although we recognize that an appellate court has jurisdiction to address moot questions that are likely to recur,² see Paul Jacquin & Sons, Inc. v. City of Port St. Lucie, 69 So.3d 306 (Fla. 4th DCA 2011), we decline to address the determination made below on the sufficiency of facts supporting the granting of the temporary injunction.

Because the purpose of a temporary injunction is not to resolve disputed issues, but rather to preserve the status quo pending final hearing on the merits, Garcia v. Dumenigo, 46 So.3d 1085 (Fla. 3d DCA 2010); Escudero v. Hasbun, 689 So.2d 1144 (Fla. 3d DCA 1997); Ladner v. Plaza Del Prado Condo. Ass'n, 423 So.2d 927 (Fla. 3d DCA 1982), and since the operative event in this case, the private

[81 So.3d 533]

party, has already taken place,³ we decline to address the merits concerning the interpretation of the Miami Beach Code, and we remand to the trial court for consideration of the City's counterclaim, which remains pending below, and for the trial court's determination of whether the City presents a reasonable interpretation of the ordinance in light of the presumption of an ordinance's reasonableness. See City of Ft. Lauderdale v. Canary Enters., 546 So.2d 1114, 1116 (Fla. 4th DCA 1989) (citing City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957)). On remand, the City is to be given wide latitude in its interpretation of the ordinance if there does not appear to be an abuse of authority violating Kuoni's fundamental rights. See Kayfetz, 92 So.2d at 801.

Remanded with...