Lindsay et al v. City of Daytona Beach

Filing 45

ORDER denying 6 Motion for Preliminary Injunction. Signed by Judge Gregory A. Presnell on 3/26/2015. (JU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SAMANTHA MIATA, BRIAN
ABERMAN, JACK ABERMAN and GEA
SEASIDE INVESTMENT, INC.,
Plaintiffs,
v.

Case No: 6:14-cv-1428-Orl-31KRS

CITY OF DAYTONA BEACH,
Defendant.

ORDER
This matter is before the Court on Plaintiff’s Motion for Preliminary Injunction (Doc. 6)
without hearing. 1
I.

Background
a. Facts

This case arises out of an ordinance passed by the City of Daytona Beach (“Daytona”) which
mandated building code inspections of rental properties prior to issuance or renewal of residential
rental licenses. The Plaintiffs are individual renters, an individual owner, and a corporate owner of
rental property subject to the inspection requirement. While code inspection ordinances for rental

1

While the Motion included a line in the case style stating “ORAL ARGUMENT
REQUESTED,” Plaintiffs did not mention that request in the body of the Motion, nor did they
request a hearing to present evidence in the subsequent briefing. Evidentiary hearings are not
mandated for all motions for preliminary injunctions. See McDonald's Corp. v. Robertson, 147 F.3d
1301, 1310-13 (11th Cir. 1998). Here, the Plaintiffs appear to have rested their motion on the papers
and the Court has accordingly ruled on the papers.

units are not uncommon, what makes this situation unique is that Daytona Beach has employed its
police force, rather than civil code enforcement officers, to undertake the inspections. (Doc. 1 ¶ 25).
b. Procedure
The Motion for Preliminary Injunction was not opposed by the filing of a memorandum in
opposition. Instead, the Defendant filed a Motion to Dismiss (Doc. 13) seeking to dismiss all claims.
In the Motion to Dismiss, Defendant notified the Court that Daytona was moving forward with a
plan to revise the challenged ordinance in a manner that it believed fixed the asserted constitutional
infirmities. The Motion to Dismiss was granted in part, but denied as to Count II, the as applied
challenge Fourth Amendment unconstitutional search claim.
Initially, this case challenged Daytona’s Ordinance 12-186, codified in Chapter 26, Article
VI of the city code, which was adopted July 18, 2012. (See Doc. 1-1). In October 2014 the
challenged portions of the code were amended by Ordinance 14-308, which is now the operative
law and has modified Chapter 26, Article VI of the city code. (See Doc. 42 at 10-25). The
amendment arguably clarifies the procedures for rental inspections such that it now specifically calls
for warrants and compliance with Florida law. The Plaintiff asserts that this has not stopped the
constitutional violations and that citations for municipal code violations are still being issued. As
this change in the law impacted the analysis for the Motion for Preliminary Injunction, the Court
permitted the parties to submit additional briefing. Plaintiff filed its supplemental brief asserting that
a preliminary injunction was still appropriate (Doc. 40) to which Defendant responded (Doc. 42).
II.

Standard

To warrant a preliminary injunction the Plaintiff must demonstrate “(1) a substantial
likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not
granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant;

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and (4) that entry of the injunction would serve the public interest.” Schiavo v. Schiavo, 403 F.3d
1223, 1225–26 (11th Cir.2005) (citing Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995)). See also
Hammock ex rel. Hammock v. Keys et al., 93 F.Supp.2d 1222, 1226–1227 (S.D.Ala.2000). A
preliminary injunction is an extraordinary remedy, and is not warranted unless the Plaintiff has
clearly met the four required elements. C.f., McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306
(11th Cir.1998); Northeastern Fl. Chapter of the Ass’n of Gen. Contractors of Am. v. City of
Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir.1990).
III.

Analysis

The amendment to the city code implicates the second element of entitlement to a
preliminary injunction—the likelihood of irreparable injury. Because the law has changed, the
Plaintiffs’ motion for preliminary injunction could not have demonstrated that application of the
new version of the ordinance would still result in the allegedly impermissible searches—the new
law had not been applied when the motion for preliminary injunction was filed. The Court gave
Plaintiffs the opportunity to address how the new law was being applied, and they did so in their
supplemental briefing by reasserting their entitlement to preliminary injunction based on two
arguments. 2 (Doc. 40).
The Plaintiffs’ assert that an injunction is still warranted because building code violation
citations have continued to be issued and some civil citations have been found inside vacant
properties. (See Doc. 40 at 7-9). First, Plaintiffs argument that the city is still issuing citations does

2

Of the two argument presented, only the second theory is considered in the body of this
Order. The First raises the argument that Florida state law preempts the 2014 Ordinance. This
preemption theory appears to be the thrust of Plaintiffs’ claim in a declaratory action filed in state
court in Volusia County. For purposes of Count II, the as-applied Fourth Amendment challenge,
whether the amendment is preempted by Florida state law matters not. Accordingly, the Plaintiffs’
argument on preemption has no impact on the present preliminary injunction analysis.

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not establish that there are still ongoing constitutional violations—the issue is how the city
undertook the subject investigations that led to the citations, not that citations are being issued. As
to the representations by counsel that interior inspections of vacant buildings have occurred under
the 2014 Ordinance, that assertion is not supported by an affidavit and is without sufficient support
for Plaintiffs to carry their burden. C.f. Marshall Durbin Farms, Inc. v. Nat'l Farmers Org., Inc.,
446 F.2d 353, 357 (5th Cir. 1971) (“[D]istrict courts have shown appropriate reluctance to issue
such [preliminary injunction] orders where the moving party substantiates his side of a factual
dispute on information and belief.”).
The dearth of evidence as to the how the new ordinance is being applied also undermines
Plaintiffs’ obligation to meet their burden on the remaining requirements for preliminary injunctive
relief: substantial likelihood of success on the merits, that the threatened injury outweighs harm of
injunction, and that it would serve the public interest.
Therefore, it is
ORDERED, the Plaintiffs’ Motion for Preliminary Injunction (Doc. 6) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on March 26, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Party

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