Posted by: Patricia Salkin | February 29, 2016

Fed. Dist. Court in FL Denies Preliminary Injunction Against Spring Break Ordinances Finding Among Other Things, No Land Use Violations

The City of Panama City Beach enacted a number of ordinances to combat what it perceived to be an increasingly out-of-control atmosphere during Spring Break. Plaintiffs, a number of businesses that cater to Spring Breakers and eight John and Jane Doe Spring Breakers, sought a preliminary injunction to prevent the enforcement of these ordinances. The basis for the preliminary injunction were: a First Amendment challenge to the hours-of-operation and beach-drinking ordinances (Counts III and VI); a Dormant Commerce Clause challenge to the Spring Break Ordinances (Count IV); an Equal Protection challenge to the Spring Break Ordinances (Count V); and a state-law land-use-planning challenges to the beach-drinking ordinance (Counts XI–XIV).

As to the First Amendment claims, the beach-drinking and hours-of-operation ordinances were “justified without reference to the content” of the entertainment offered at Plaintiffs’ establishments. Moreover, the ordinance left open ample alternative channels of communication for Plaintiffs because they could still drink until 2am during March (when this ordinance applied). Thus, the court found the Plaintiffs were unlikely to succeed in showing that the beach-drinking and hours-of-operation ordinances were not reasonable time, place, and manner restrictions. Furthermore, the court found the requirement for pre-enactment evidence does not preclude governments from “relying on their own wisdom and common sense.” As to their “as-applied” challenge, since Plaintiffs were not doing anything extraordinary, and they could not argue that they are involved in a different type of fact situation from the ones on the basis of which the ordinances were already upheld facially.

In the Plaintiffs’ Dormant Commerce Clause claim, they alleged the City was attempting to interfere and/or will interfere with interstate commerce by discouraging people from coming to Panama City Beach for Spring Break. The Spring Break Ordinances were not discriminatory on their face, nor did they seem to implicate the kind of protectionism that the Dormant Commerce Clause was meant to ad-dress, but they were targeted at keeping out certain people who the City feels are responsible for much of the crime during Spring Break. Despite this, these ordinances were not discriminatory because they treat visitors to the City and locals precisely the same during the month of March, and the only adverse effects were on Spring Breakers and not non-locals as a whole.

Plaintiffs’ Equal Protection claim was that “the City of Panama City Beach clearly showed racial animus against African Americans in the promulgation and adoption of the Spring Break Ordinances. The degree of racial animus that can be attributed to the relevant actors in this case turned in large part on what the terms “100-miler,” “predator,” “thug” referred to. Because these terms were all ambiguous and not necessarily racist, the court found that Plaintiffs had not done enough to show why they should consistently be construed as racist in the context(s) in which they were spoken. Thus, Plaintiffs failed to establish a substantial likelihood of success on their claim that race was a motivating factor in passing the Spring Break Ordinances.

Finally, as to Plaintiffs’ land use claims, the court noted that the procedures of § 166.041, Florida Statutes only applies to “ordinances that change the actual list of permitted, conditional, or prohibited uses within a zoning category, or ordinances … that change the actual zoning map designation of a parcel … of land.” Here, the beach-drinking ordinance directly regulated conduct and cut across use zoning classifications; that it also happened to only apply in a limited geographic area did not make it a zoning ordinance in disguise. Moreover, given that the beach-drinking ordinance did not substantially affect the use of Plaintiffs’ land, it was not considered to be a land development regulation. Accordingly, the Plaintiffs’ motion for a preliminary injunction was denied.

Funtana Village, Inc. v City of Panama City Panama, 2016 WL 375102 (ND FL 1/28/16)

 


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