P.M. Realty & Investments v. City of Tampa Fl

• Court: Florida District Court of Appeals
• Decision Date: 05 May 2000
• Docket Number: 2,99-135
• Citation: P.M. Realty & Investments v. City of Tampa Fl (Fla. App. 2000)
• Parties: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. P.M. REALTY & INVESTMENTS, INC., Appellant, v. CITY OF TAMPA, FLORIDA, a municipal corporation, and GLORIA MOREDA, in her official capacity as zoning administrator for the city of Tampa, Florida Appellees. CASE NO. 2D99-135 IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT Opinion filed

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

P.M. REALTY & INVESTMENTS, INC., Appellant v CITY OF TAMPA, FLORIDA, a municipal corporation, and GLORIA MOREDA, in her official capacity as zoning administrator for the city of Tampa, Florida Appellees

CASE NO. 2D99-135

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Opinion filed May 5, 2000.

Appeal from nonfinal order of the Circuit Court for Hillsborough County; James S. Moody, Jr., Judge.

Luke Charles Lirot of Luke Charles Lirot, P.A., Tampa, for Appellant.

Richard E. Fee, Assistant City Attorney, and James D. Palermo Chief Assistant City Attorney, Tampa, for Appellees.

GREEN, Judge.

P.M. Realty & Investments, Inc., (P.M.) timely appeals the trial court's nonfinal order granting the motion for a preliminary injunction filed by the city of Tampa, Florida, a municipal corporation, and Gloria Moreda, in her official capacity as zoning administrator for the city of Tampa, Florida (Tampa). We affirm.

In February 1996, P.M. engaged in a business called the Club Flamingo, in a historic district of Tampa, Florida, known as Ybor City. The development of Club Flamingo was undertaken with the specific intent of offering to the public the vending of alcoholic beverages and the presentation of exotic dance performances.

P.M. contends that the trial court erred by finding that the required special use permit procedures in chapter 27 of the Tampa City Code were controlling authority over its motion to dismiss. P.M. also contends that chapter 27 of the Tampa City Code constitutes a prior restraint on free speech due to lack of adequate procedural safeguards and that the ordinance denies P.M. equal protection of the law. P.M. further contends that imposition of the ordinance constitutes a taking of or infringement on its First Amendment right and that the ordinance is facially unconstitutional and unconstitutional as applied.

Club Flamingo began business in Ybor City without applying for a special use permit required by Tampa for adult businesses. P.M.'s reasoning was that Club Flamingo was surrounded by night clubs serving alcohol which were not affected by the existence of the cabaret.

I. Whether a Temporary Injunction Should be Granted

The standard of review in this appeal is abuse of discretion, which is based on the principle of general reasonableness. See Richard v. Behavioral Healthcare Options, Inc., 647 So. 2d 976 (Fla. 2d DCA 1994). The correct four-part test set out in Cosmic Corp. v. Miami Dade County, 706 So. 2d 347 (Fla. 3d DCA 1998), was applied in this case. The four-part test provided for in Cosmic Corp. is as follows:

A temporary injunction should only be granted where there is a showing of (1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law, (2) the substantial likelihood of success on the merits, (3) that the threatened injury to petitioner outweigh any possible harm to respondent, and (4) that the granting of the injunction will not disserve the public interest.

706 So. 2d at 348. P.M. believes the trial judge incorrectly applied these factors.

The trial court properly held that a violation of a city ordinance is irreparable harm per se. See Florida Dept. of Envtl. Reg. v. Kaszyk, 590 So. 2d 1010 (Fla. 3d DCA 1991). Zoning ordinances that limit the areas in which adult businesses may locate have been upheld as constitutional. See U.S. Partners Financial Corp. v. Kansas City, 707 F. Supp. 1090 (W.D. Mo. 1989) (holding city had right to regulate time, place, and manner of offering of adult entertainment in the city). Furthermore, competent, substantial evidence is not needed to support the injunction. See Centerfold Club, Inc. v. City of St. Petersburg, 969 F. Supp. 1288 (M.D. Fla. 1997) (holding that while city had burden to justify zoning ordinance for adult entertainment establishments, link was only required to be supported by reasonable belief, not by substantial, competent evidence).

P.M. argues that it did not apply for an appropriate adult use permit because chapter 27 of the city code is unconstitutional. Therefore, any injury to the city caused by noncompliance is, at most, remote and speculative, and other legal remedies would be more appropriate than an injunction. In Metropolitan Dade County v. O'Brien, 660 So. 2d 364 (Fla. 3d DCA 1995), the O'Briens established a business without complying with various county ordinances or securing necessary permits. As a result, the Third District held that "where the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed." 660 So. 2d at 365. The court also held that under the circumstance where one opens a business aware of the violations to the ordinances and continues to operate that business in violation, the government has a clear legal right to relief. Accordingly, we believe that Tampa has satisfied the first two-prongs of the test set out in Cosmic Corp.

The trial judge also found that the continued violation of the city ordinance by P.M. was a greater harm to Tampa than to P.M. P.M. refused to voluntarily comply with the ordinance, leaving Tampa no choice but to seek an injunction. The club's continued operation was balanced against injury to the city, and the trial judge, in his discretion, ruled "the threatened injury to [the city] outweighs the harm to [P.M.]." This finding satisfies the third prong of the Cosmic Corp. test.

P.M. claims that the injunction does not serve the public interest because it is a restraint on the freedom and rights guaranteed by both state and federal constitutions. However, Tampa contends that the public has an interest in seeing that businesses comply with its ordinances and city zoning plan. We agree that the injunction serves the public interest. Having satisfied the four-part test in Cosmic Corp., the temporary injunction was properly granted.

II. S-1 vs. S-2 Permit

P.M. contends that the permit required to operate an adult use would be an S-2 special use permit, rather than an S-1 permit. The trial court held that the S-1 permit was required, and because appellant did not apply for one, it was in violation. An S-1 special use permit is required where "specified uses or characteristics of use could have adverse effects on adjacent properties unless special requirements are met." City of Tampa Code Section 27-267(b)(1). An S-2 permit is required where "specified uses or occupancies involve matters deemed to be of citywide or area wide [sic] importance." § 27-267(b)(2). We agree with the trial court that the location of Club Flamingo falls under the requirements of an S-1 special use permit.

III. Is the Ordinance a Prior Restraint on Free Speech?

P.M. also contends that the zoning ordinance is a prior restraint on free speech due to either unbridled administrative discretion or lack of prompt judicial review. P.M. supports this theory by referencing a trial court order issued by Judge Manuel Lopez in State v. Fowler, Case No. 98-25685, Div. E., Hillsborough County Criminal Court (1997).

Judge Lopez, relying partly on the decision of Baby Tam v. City of Las

Vegas, 154 F.3d 1097 (9th Cir. 1998), found that section 27-267(1)(d), which "provides for judicial review of city council's decision by circuit court as provided by law does not provide for prompt judicial review." Judge Lopez also found that section 27-394(c), which mandates when the city council shall set a hearing but provides no time limits for the council to reach a decision, and its related provision that review of city council's decision shall be by certiorari, does not provide for prompt judicial review. Judge Lopez therefore ruled that the ordinance could not withstand constitutional criticism from the standpoint of affording due process. We disagree.

The subject code provides that in the instance of S-1 permits the zoning administrator must review and issue a decision within thirty days. Subsection (d) of the ordinance provides for appeal by the applicant within thirty days of a decision and that review of a negative decision must be ruled upon by the city council within forty-five days. Appeal of the city council's decision is to the circuit court as provided by law. The ordinance in question is significantly different from that in the case of Baby Tam, wherein the unsuccessful applicant was required to file a petition for mandamus in state court for relief. We also note that the Baby Tam decision is cited as imposing "an impossible burden on the city" in the decision of Le v. City of Citrus Heights, 1999 WL 420153 (E.D. Cal. Feb. 11, 1999).

The United States Supreme Court in the case of FW/PBS v. City of Dallas, 493 U.S. 215 (1990), emphasized that the possibility and availability of prompt judicial review will satisfy the standard. Justice O'Connor wrote that "expeditious judicial review of that decision must be available" and that "there must be the possibility of prompt judicial review in the event that the license is erroneously denied." We do not rule out the possibility of a mandamus proceeding with respect to a recalcitrant city council in completing their duties. However, we do not perceive that to be a significant procedural problem and, therefore, disagree with the conclusion reached by Judge Lopez.

In the present case, the trial court held that zoning ordinances restricting the location of adult businesses have been held not to constitute invalid prior restraints on speech. This finding is in compliance with the United States Supreme Court in the case of Young v. American Mini Theatres, 427 U.S. 50 (1976).

With respect to P.M.'s argument that the ordinance gives Tampa unbridled discretion, the trial judge made the following findings and conclusions. We quote approvingly from the trial judge's order.

Defendant argues that the ordinance lacks adequate procedural safeguards and has no...