HARBOURSIDE PLACE, LLC, a Florida limited liability company, Plaintiff - Appellant, versus 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
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
May 14, 2020
D.C. Docket No. 9:16-cv-80170-KAM; [PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
(May 14, 2020)
Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER,* District 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
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
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[.]”
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.”
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.‘”
II
“[A] preliminary injunction in advance of trial is an extraordinary remedy.” Bloedorn v. Grubs, 631 F.3d 1218, 1229 (11th Cir. 2011). To obtain a preliminary
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, 138 S. Ct. 1942, 1943 (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.” Thornburg v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 755 (1986), overruled on other grounds by Planned Parenthood v. Casey, 505 U.S. 833 (1992). See, e.g., Ashcroft v. A.C.L.U., 542 U.S. 656, 666 (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 (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. Matthews, 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
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 final plans and prior to the issuance of any building permits. Because building permits were already issued for Harbourside Place, and because the property opened in 2014, Harbourside submits that there was no need to again revise the statement of use to satisfy Condition 11.
We are not persuaded by Harbourside‘s argument. The district court did not base its outdoor venue finding solely on Harbourside‘s failure to meet Condition 11. Instead, it found that Harbourside Place had failed to meet “all” the conditions necessary to be an outdoor venue, and that Harbourside Place “repeatedly exceeded” permitted noise levels. See D.E. 173 at 6–7. We recognize that Harbourside presented evidence to support its position—for example, the testimony of Nick Mastroiaonni (the Vice President of Allied Capital, the developer of Harbourside Place)—but the district court‘s findings are supported by four components of the record and are not clearly erroneous. See generally Amadeo v. Zant, 486 U.S. 214, 226 (1988) (explaining that a finding is not clearly erroneous if there are “two permissible views of the evidence“) (citation and internal quotation marks omitted).
First, John Sickler, Jupiter‘s director of zoning, stated in his affidavit that the approval of Harbourside‘s amphitheater as an outdoor venue in February of 2013 under Resolution No. 2-13 did not permanently establish Harbourside as a certified outdoor venue. Harbourside Place still had to satisfy all relevant code requirements to be considered an outdoor venue. See D.E. 102-1 at ¶¶ 22–30.
Second, Roger Held, a Jupiter building official who issued the certificate of occupancy for Harbourside Place, confirmed Mr. Sickler‘s testimony. Mr. Held stated in his affidavit that the certificate of occupancy did not certify Harbourside Place‘s compliance with any aspects of the Jupiter Code relating to uses of the property. See D.E. 103-1 at ¶¶ 4–5.
Third, Stephanie Thoburn, Jupiter‘s assistant director of zoning and planning, explained in her affidavit that Harbourside had failed to satisfy several of the outdoor venue requirements. These included, but were not limited to, the failure to follow Condition 11. For example, according to Ms. Thoburn, Harbourside also did not satisfy the applicable exterior sound standards and its site plan did not identify all the items required by the Jupiter Code. See D.E. 99-1 at ¶ 32(e)-(f). The later sound studies submitted by Harbourside, moreover, were deficient. The March 2014 study did not meet code requirements and did not include details of the speakers and proposed outdoor stage, while the September 2015 study did not include a site plan or measure site level compliance at the property. See id.
The district court credited the testimony of Mr. Sickler, Mr. Held, Ms. Thoburn, Mr. Dugger, and Mr. Siebein. See D.E. 173 at 6–7. So, even if Harbourside was generally correct about Condition 11, it has not successfully challenged the other deficiencies that prevented it from achieving outdoor venue status under Resolution 2-13. The district court‘s factual findings stand, and as a result we must address Harbourside‘s First Amendment claims.
IV
Harbourside asserts that the provisions of the Jupiter Code summarized in Part II, on their face, constitute content-based regulations of speech that violate the First Amendment. Harbourside also contends that the special permit requirement for live musical performances constitutes an unconstitutional prior restraint. See Br. for Appellant at 15-32.
A
The First Amendment prohibits laws “abridging the freedom of speech.”
We acknowledge that it can be tricky (some might even say reckless) to set out black-letter principles governing the First Amendment. But we think we are on safe ground in saying that noise ordinances generally do not violate the First Amendment if they are content-neutral and do not single out any specific type of speech, subject-matter, or message. For example, the Supreme Court has explained that “a prohibition against the use of sound trucks emitting ‘loud and raucous’ noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428-29 (1993) (citing Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (plurality opinion)). See generally 6A McQuillin, The Law of Municipal Corporations § 24:106 (3d ed July 2019) (“A municipal corporation . . . may reasonably regulate . . . the use of sound amplifiers and motor vehicles carrying such devices . . . . [but the] ordinance should be narrowly drawn to avoid specific evils . . . and so as not to infringe on the freedoms embodied in the First Amendment.“).
On the other hand, content-based laws which “target speech based on its communicative content” are “presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 2226 (2015). “Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 2227. See also Dana‘s R.R. Supply v. Att‘y Gen. of Fla., 807 F.3d 1235, 1246 (11th Cir. 2015) (quoting Reed and adopting its formulation).
In order to determine whether a regulation of speech is content based, we must first consider whether, “on its face,” it “draws distinctions based on the message a speaker conveys.” Reed, 135 S. Ct. at 2227 (internal quotation marks omitted). We may also consider whether the regulation was enacted due to an impermissible motive, i.e., the suppression of free expression. See id. at 2228. See also Ward, 491 U.S. at 791 (1989) (“The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.“). When a regulation is content based on its face, strict scrutiny applies and there is no need for the speaker to also show an improper purpose. See Reed, 135 S. Ct. at 2228.
B
We begin with §§ 13-107(a)(1) and 13-107(b) of the Jupiter Code. The district court, as we explain, did not abuse its discretion concluding that Harbourside failed to show a substantial likelihood of success on its First Amendment challenges to these provisions.
On its face, the sound amplification restrictions set out in
C
That leaves
“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 135 S. Ct. at 2227. See also Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) (“[T]wo parades cannot march on the same street simultaneously, and government may allow only one.“); 1 Rodney Smolla, Smolla and Nimmer on Freedom of Speech § 3.9 (2019) (“A content-based regulation either explicitly or implicitly presumes to regulate speech on the basis of the substance of the message.“). Government discrimination among viewpoints is a more blatant and egregious form of content discrimination. See Reed, 135 S. Ct at 2230. “[A]ll viewpoint discrimination is first content discrimination, but not all content discrimination is viewpoint discrimination.” 1 Smolla, Freedom of Speech § 3:9.
Jupiter asserts, and the district court concluded, that
Yet it is undeniable that
As Harbourside points out, “[l]ive musical performance, as opposed to commercially available recorded music, may also contain improvisation of musical notes, lyrics, and vocalization, as well as physical and vocal expression.” Br. for Appellant at 20. Cf. D.A. Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1266 (11th Cir. 2007) (concluding that a municipal noise ordinance was not content-based because “[o]n its face” it did not “disallow certain types of recorded noise or particular viewpoints“). There is also the potential problem, not mentioned by Harbourside, that some performers, groups, or bands may not have recorded any of their performances, leaving them without a feasible alternative method of presenting and communicating their music.
When seen from this perspective, there is an argument that
On the other hand, there are countervailing considerations. A non-residential establishment in Jupiter can play recorded music of any kind (assuming compliance
Harbourside relies on the Supreme Court‘s decision in Discovery Network, but that case cannot bear the weight that Harbourside puts on it. In Discovery Network the Supreme Court addressed the constitutionality of a city ordinance which prohibited the distribution of commercial handbills on public property and required the removal of newsracks belonging to commercial enterprises while permitting newsracks belonging to newspapers. The Court held for a number of reasons that the ordinance violated the First Amendment, see 507 U.S. at 417–28, and rejected the contention that the ordinance was content neutral: “[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech . . . . Under the city‘s newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is ‘content-based.‘” Id. at 429.
As this quote demonstrates, Discovery Network is a different case, one in which the regulation was based upon the substantive content of the material placed in newsracks. Here, in contrast,
One recent case we have found involving a content-based challenge to a noise ordinance, Hassay v. Mayor of Ocean City, 955 F. Supp. 2d 505 (D. Md. 2013), is not very helpful. The plaintiff, a violinist who performed as a street musician, challenged a provision of a city ordinance which prohibited radios, musical instruments, phonographs, or sound amplification machines as “unreasonably loud noises” if the sound was “plainly audible” at a distance of 30 feet. See id. at 510. Because a separate provision of the ordinance treated human sound—yelling, shouting, hooting, whistling, or singing—as prohibited if it was “plainly audible” at a distance of 50 feet, the violinist argued that the former provision was content-based. See id. at 520 (“Hassay insists that Ocean City discriminates between one form of expression—instrument or machine-generated sound—and another form of expression—the human voice—and thus the ordinance is not content neutral.“). The city, in response, asserted that the 30-foot audibility restriction was content-neutral because the “secondary effects of instruments or machine-generated sound differentiates those sounds from the human voice.” Id. Unfortunately for us, the district court in Hassay did not resolve the content-based/content-neutral dispute because it held that the ordinance violated the First Amendment even under intermediate scrutiny. See id. So, aside from laying out the parties’ arguments—which somewhat mirror those made here—Hassay does not provide us with much guidance.
Adding to the legal uncertainty is Turner Broadcasting, which involved the constitutionality of certain federal must-carry provisions that applied to cable networks but not television networks. The provisions required some cable networks (those with a certain number of active channels and/or more than a certain number of subscribers) to carry several local commercial and public television stations. See Turner Broadcasting, 512 U.S. at 630–32. The cable companies that challenged the must-carry provisions argued that they formed content-based regulations which demanded strict scrutiny, but the Supreme Court disagreed. The must-carry provisions’ burdens and benefits were “unrelated to content,” and “distinguish[ed] between speakers in the television market . . . [based] upon the manner in which speakers transmit their messages to viewers, and not upon the messages they carr[ied].” Id. at 644–45 (emphasis added). See also id. at 652 (“In short, the must-carry provisions are not designed to favor or disadvantage speech of any particular content.“). As a result, intermediate scrutiny—and not strict scrutiny—applied. See id. at 661-62.
In addressing the argument that the must-carry provisions were content-based because they differentiated between speakers, the Supreme Court stated that “speaker-based laws demand strict scrutiny when they reflect the [g]overnment‘s preference for what the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say).” Id. at 658. Turning to the contention that the must-carry provisions warranted strict scrutiny because they favored one set of speakers (television networks) over another (cable networks), the Court acknowledged that “[r]egulations that discriminate against media, or among different speakers within a single medium, often present serious First Amendment concerns.” Id. at 659. But it went on to explain that not all such regulations merit strict scrutiny: “It would be error to conclude, however, that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others . . . . [H]eightened scrutiny is unwarranted when the differential treatment is ‘justified by some special
Turner Broadcasting is not directly on point, but it certainly is relevant to the issue before us. One of the arguments made by Jupiter, based on the affidavits of Mr. Dugger and Mr. Siebein, is that
Given the posture of the case, the lack of a fully-developed record, and the parties’ failure to cite or discuss Turner Broadcasting, we think this is a good opportunity for us to practice judicial minimalism, and decide no more than what is necessary to resolve Harbourside‘s preliminary injunction appeal. See generally Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 1-3 (1999). We therefore do not definitively decide whether
C
A licensing or permitting requirement can constitute a prior restraint of speech. See Conrad, 420 U.S. at 554–57; Barrett v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1223 (11th Cir. 2017). Harbourside argues in its brief that the outdoor venue/special permit requirements in the Jupiter Code for live musical performances constitute a prior restraint that violates the First Amendment.
“Prior restraints are presumably unconstitutional and face strict scrutiny.” Burk, 365 F.3d at 1251. Nevertheless, in some instances a “prior restraint may be approved if it qualifies as a regulation of the time, place, and manner of expression rather than a regulation of content.” Id. Our cases teach that a “[p]rior restraint[] must (1) ensure that permitting decisions are made within a specified period of time and must (2) avoid unbridled discretion in the hands of a government official.” Café Erotica of Fla., Inc. v. St. Johns Cty., 360 F.3d 1274, 1282 (11th Cir. 2004) (citation and internal quotation marks omitted).
Harbourside moved for injunctive relief before Jupiter enforced Ordinance 1-16. See Tr. of Preliminary Injunction Hearing, Vol. I, at 76. At the outset of the preliminary injunction hearing, Harbourside told the district court it was “not here on the other issues of vesting, of . . . prior restraints that occurred before,” i.e., under the previous version of the Code. See id. at 21. Although Harbourside had asserted a prior restraint theory in a paragraph of its second amended motion for injunctive relief, see D.E. 44 at 22, it did not mention prior restraint in its opening statement or closing argument at the preliminary injunction hearing, and did not ask the district court at the hearing to invalidate on
As a general rule, we do not consider an argument or theory that was not presented to the district court. See, e.g., Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994). There are exceptions for “exceptional” circumstances, as laid out in cases like Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004), and one of those exceptions gives us discretion to rule on an issue raised for the first time on appeal if it presents a pure question of law and failure to decide it would result in a miscarriage of justice. See, e.g., Twiss v. Kury, 25 F.3d 1551, 1556 (11th Cir. 1994). Here our refusal to address the prior restraint argument will not result in a miscarriage of justice because Harbourside will be free to press that theory on remand and develop a record with respect to the Chapter 27 provisions it thinks are unconstitutional. We therefore do not consider Harbourside‘s prior restraint argument.
V
We recognize that we have said a lot but decided relatively little. But we believe that is the proper approach on this record, and hopefully our discussion will lead to more sharpened and focused arguments on remand.
Because the district court did not abuse its discretion, we affirm its order denying Harbourside‘s motion for a preliminary injunction. In so holding, we express no views on the ultimate merits of Harbourside‘s claims.
AFFIRMED.