Harbourside Place, LLC v. Town of Jupiter

• Decision Date: 14 May 2020
• Docket Number: No. 18-12457,18-12457
• Citation: 958 F.3d 1308
• Parties: HARBOURSIDE PLACE, LLC, a Florida limited liability company, Plaintiff - Appellant, v. TOWN OF JUPITER, FLORIDA, a Florida municipal corporation, Jupiter Community Redevelopment Agency, a dependent special district of the Town of Jupiter, Florida, Defendants - Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

958 F.3d 1308

HARBOURSIDE PLACE, LLC, a Florida limited liability company, Plaintiff - Appellant,

v.TOWN OF JUPITER, FLORIDA, a Florida municipal corporation, Jupiter Community Redevelopment Agency, a dependent special district of the Town of Jupiter, Florida, Defendants - Appellees.

No. 18-12457

United States Court of Appeals, Eleventh Circuit.

May 14, 2020

Mitchell W. Berger, Zachary Paul Hyman, Berger Singerman, LLP, Roca Raton, FL, Anthony J. Carriuolo, Paul S. Figg, Berger Singerman, LLP, Fort Lauderdale, FL, for Plaintiff - Appellant.

Lyman Hawley Reynolds, Jr., George Preston Roberts, Jr., Roberts Reynolds Bedard & Tuzzio, PLLC, West Palm Beach, FL, for Defendants - Appellees.

Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER,^* District Judge.

JORDAN, Circuit Judge:

Harbourside Place, LLC—whom we'll call Harbourside—is the owner of Harbourside Place, an 11-acre commercial development located in Jupiter, Florida, along the Intercoastal Waterway. Harbourside Place is a mix of retail, hotel, and office space that encompasses some open public spaces, including a riverwalk and an outdoor amphitheater. Water's Edge Estates, a residential development, is located across from Harbourside Place on the Intercoastal Waterway.

Not happy with the fact that provisions of the Jupiter Code were applied to prevent Harbourside Place from holding live musical performances, Harbourside sued Jupiter and its Community Redevelopment Agency under 42 U.S.C. § 1983. After Harbourside filed suit, Jupiter enacted Ordinance 1-16 to deal with, among other things, the regulation of amplified sound. Harbourside moved for a pre-enforcement preliminary injunction, alleging in part that certain sections of Ordinance 1-16 are content-based regulations of speech that violate the First and Fourteenth Amendments. Harbourside also claimed that, contrary to Jupiter's administrative findings, it satisfied the criteria to be considered a certified outdoor venue (which, among other things, would have allowed it to hold live musical performances under the Jupiter Code).

The district court, following an evidentiary hearing, denied injunctive relief. The district court found, as a factual matter, that Harbourside has not met the criteria to be an outdoor venue. It also concluded that the challenged sections of Ordinance 1-16 are content-neutral and do not violate the First Amendment. Harbourside appealed the district court's order.

We affirm. Conducting limited abuse of discretion review—and without definitively addressing the merits—we conclude that the district court did not abuse its discretion in ruling that Harbourside failed to establish a likelihood of success on its claims that it qualifies as an outdoor venue and that the challenged sections of the Jupiter Code are content-based.¹

I

As relevant here, Ordinance 1-16 establishes a two-tiered scheme for the use of amplified sound at non-residential properties and contains a separate section relating to outdoor live musical performances. We summarize these provisions below, and for ease of reference we cite to Ordinance 1-16 as it is currently codified in the Jupiter Code.

The Code restricts the use of outdoor sound amplification devices—in all circumstances—between the hours of 11:00 p.m. and 7:00 a.m. It is "unlawful to use, operate or permit to be played ... any outdoor sound amplification machine or device ... for the production or reproducing of sound between the hours of 11:00 p.m. and 7:00 a.m., except if approved as an outdoor venue[.]" Jupiter Code § 13-107(a)(1); D.E. 173 at 4.

A venue "may be approved to operate outdoor sound amplification devices with extended hours up to 12:00 a.m." (i.e., for an extra hour) if it meets the criteria for an outdoor venue and complies with applicable "[e]xterior sound standards." Jupiter Code § 13-107(b)(1)-(6); D.E. 173 at 4. These sound standards can be found at § 13-144, Table 2, of the Code. Measured at a three-minute equivalent sound level (or Leq), the current sound standards for outdoor venues that are commercial/mixed use properties without residential components are 65 dBA between 7:00 a.m. and 11:00 p.m.; 55 dBA between 11:00 p.m. and 12:00 a.m.; and 50 dBA between 12:00 a.m. and 7:00 a.m. The standards were lower in 2015 and 2016.²

Notwithstanding the restrictions on outdoor sound amplification devices, and the added hour for outdoor venues, "[o]utside live musical performances associated with a non-residential establishment shall meet the outdoor venue regulations of subsection (b) of this section or obtain special permits pursuant to [C]hapter 27, article IV, entitled ‘Special Permits.’ " Jupiter Code § 13-107(a)(3); D.E. 173 at 4. The Code does not appear to limit Chapter 27 special permits to any specific hours. See Jupiter Code § 27-370(b)(1) (stating generally that special permits can include "[l]imits to the hours of operation"). So, as the district court explained, Jupiter requires "any person wanting to have an outdoor live musical performance on ... non-residential property [to] obtain a special event permit from the Town or approval from the Town Council for an outdoor venue[.]" D.E. 173 at 6 (emphasis added).

II

"[A] preliminary injunction in advance of trial is an extraordinary remedy." Bloedorn v. Grube , 631 F.3d 1218, 1229 (11th Cir. 2011). To obtain a preliminary injunction, a litigant like Harbourside must establish "(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction is issued; (3) [that] the threatened injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and (4) [that,] if issued, the injunction would not be adverse to the public interest." Lebron v. Sec'y, Fla. Dep't of Children and Families , 710 F.3d 1202, 1206 (11th Cir. 2013) (citation omitted).

Before we begin, a word about the standard of review is in order. As a general matter, we review a preliminary injunction ruling for abuse of discretion. See, e.g., Benisek v. Lamone , ––– U.S. ––––, 138 S. Ct. 1942, 1943, 201 L.Ed.2d 398 (2018) ; United States v. Alabama , 691 F.3d 1269, 1281 (11th Cir. 2012). Although we can sometimes decide legal issues conclusively in preliminary injunction appeals, as in Burk v. Augusta-Richmond Cty. , 365 F.3d 1247, 1250 (11th Cir. 2004), the Supreme Court has said that "limited [abuse of discretion] review normally is appropriate." Thornburgh v. Am. Coll. of Obstetricians and Gynecologists , 476 U.S. 747, 755, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), overruled on other grounds by Planned Parenthood v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). See, e.g., Ashcroft v. A.C.L.U. , 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (concluding that the district court's determination as to likelihood of success "was not an abuse of discretion"); Brown v. Chote , 411 U.S. 452, 457, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973) ("In reviewing such interlocutory relief, this Court may only consider whether issuance of the injunction constituted an abuse of discretion .... In doing so, we intimate no view as to the ultimate merits of appellee's contentions."); Callaway v. Block , 763 F.2d 1283, 1287 n.6 (11th Cir. 1985) ("[W]hen an appeal is taken from the grant or denial of a preliminary injunction, the reviewing court will go no further into the merits than is necessary to decide the interlocutory appeal."); Martinez v. Mathews , 544 F.2d 1233, 1242–43 (5th Cir. 1976) ("Appellate courts especially must not go beyond a very narrow scope of review, for these preliminary [injunction] decisions necessarily entail very delicate trial balancing.").

We follow the traditional path of limited review in this appeal and ask only whether the district court abused its discretion in concluding that Harbourside failed to establish a substantial likelihood of success on the merits of its claims. See LSSi Data Corp. v. Comcast Phone LLC , 696 F.3d 1114, 1120 (11th Cir. 2012) ("The first question before us is whether the District Court abused its discretion in concluding that LSSi had shown a ‘substantial likelihood of success' on the merits of its claim.") (citation omitted). We do this for two reasons. First, the parties had not engaged in full-blown discovery at the time of the preliminary injunction hearing, and as a result the district court had a limited record. Second, on appeal the parties have failed to cite or discuss a Supreme Court case that we believe is relevant to Harbourside's First Amendment claims. See GeorgiaCarry.Org v. U.S. Army Corps of Eng’rs , 788 F.3d 1318, 1327 (11th Cir. 2015) (declining to reach the merits of a Second Amendment claim in a preliminary injunction appeal because, among other things, the record was not fully developed and the parties had not briefed an important historical issue).

III

Harbourside argues that the district court clearly erred in finding that it did not satisfy the necessary criteria to be an outdoor venue under § 13-107(b)(1)–(6).

See Br. for Appellant at 32–33. Given the judicial preference for avoiding constitutional questions when possible, see, e.g. , Camreta v. Greene , 563 U.S. 692, 705, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011), we address this contention first.

According to Harbourside, the district court incorrectly concluded that it failed to satisfy Condition 11 of Jupiter Resolution No. 2-13, which was passed by the Jupiter Town Council in February of 2013 and approved Harbourside Place as an outdoor venue subject to its meeting a number of conditions. Condition 11 provided that, upon the submission of the final plans and prior to the issuance of any building permits, Harbourside had to revise its "statement of use" to note the installation, setting, and locking of a sound limiter so that the Harbourside Place's sound system would meet Jupiter's sound level regulations. As Harbourside sees things, Condition 11 applies only upon the submission of...