IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

CASE NO(s): 2021-025673-CA-44

2021-026610-CA-44
2021-026093-CA-44
2021-025868-CA-44
2021-026092-CA-44
2021-025836-CA-44

JUDGE: William Thomas

SRA/LINCOLN THEATER,
LLC et al

Plaintiff(s)

vs.

THE CITY OF MAMI BEACH,

FLORIDA

Defendant(s)
____________________________/

ORDER ON PLAINTIFFS’ EMERGENCY MOTION FOR

TEMPORARY INJUNCTION

This matter came before the Court for a preliminary injunction hearing on December 14,

2021 at 8:45 a.m. on the Emergency Motions for Expedited Relief and for Temporary Injunction

filed by thirteen plaintiffs (the “Plaintiffs”) in six related lawsuits following the denial of sidewalk

café permits by the City of Miami Beach (the “Motions”). Defendant the City of Miami Beach

(the “City” or the “Defendant”) was served with the Complaint and the Motions, had notice of

the hearing, and filed a response and affidavits in opposition to the Motions. The Court, having

heard argument by counsel for the thirteen Plaintiffs and counsel for the Defendant in these related

cases, having reviewed the complaints, verified complaints, motions for injunctive relief,

affidavits, and other papers, and otherwise being fully apprised of the matters in the respective

files, and being otherwise duly advised in the premises herein, makes the following findings:
 CASE NO: 2021-025673-CA-44

Undisputed Facts and Procedural Posture

This matter results from the filing of one of six lawsuits by thirteen different plaintiffs (the

“Plaintiffs”) who are owners and operators of sidewalk cafés in Miami Beach, Florida. Sidewalk

café operations are authorized and regulated by ordinances contained in the Miami Beach City

Code of Ordinances (the “Code”). In addition to creating sidewalk café regulations and authorizing

the issuance of operating permits, the City has passed ordinances and amended those ordinances

from time to time to specifically regulate sidewalk café permits and the renewal process thereof.

Pursuant to the applicable City Ordinance, sidewalk café permits (“SCP”) last for one year and

expire on the 30th day of September each year. Operators who wish to renew such permits must

timely file a renewal application and demonstrate that they meet the guidelines regulating sidewalk

café permits.

On March 17, 2021, the City of Miami Beach Commission passed an amendment to the

existing ordinance regulating SCPs (“SCP Ordinance”), effective March 27, 2021, materially

changing the renewal criteria relative to SCPs. See Section 82-382. One hundred forty-four permit

holders filed fiscal year 2021/2022 renewal applications to renew their SCPs for fiscal year

2021/2022. The City issued denial letters to thirteen of those permit holders pursuant to Sections

82-382 and 82-381 of the SCP Ordinance. The denial letters are in the record and, although each

denial letter is specific to that individual plaintiff, the denial letters all essentially adopt one or

more of the constitutionally challenged provisions in the SCP Ordinance to support the City’s

decision to deny renewal of the thirteen Plaintiffs’ SCPs for fiscal year 2021/2022.

Twelve of the thirteen Plaintiffs filed five of the six related lawsuits and companion motions

for temporary injunctive relief seeking an order from the Court maintaining the status quo and

allowing those twelve Plaintiffs to continue operating their sidewalk cafés until final adjudication
 CASE NO: 2021-025673-CA-44

of their constitutional challenge of the SCP Ordinance. The thirteenth Plaintiff, Il Giardino,

actually ceased operations pursuant to its denial letter but filed its lawsuit a few days later. By

agreement with the City, Il Giardino was allowed to reopen, and all thirteen Plaintiffs are currently

operating their sidewalk cafés pursuant to this Court’s prior status quo ruling from an initial

hearing held on November 29, 2021.

All thirteen Plaintiffs in the six respective lawsuits are before this Court. This Court set a

briefing and hearing schedule applied to all six lawsuits that culminated in the December 14 th ,

2021 preliminary injunction hearing from which this Order emanates.

All parties filed either verified complaints, motions, or a response with accompanying

affidavits in support of their respective positions. The parties stipulated that the Court may rely on

the verified filings as well as the filed affidavits. The Court heard oral argument on the legal issues

presented by the Plaintiffs at the December 14th hearing.

The Plaintiffs’ claim that the current version of the SCP Ordinance regulating the renewal

process is unconstitutional on its face and unconstitutional as applied. The Plaintiffs argue that

they have constitutionally protected rights in the SCP, in the SCP process, and including

specifically the SCP renewal process. As such, they are entitled to due process with respect to the

renewal process and more particularly the denial process that resulted in the City denying thirteen

of the 144 timely submitted applications. The City of Miami argues that Plaintiffs have no

protectable property interest in the renewal of a discretionary annual permit to conduct part of their

businesses on City property. Additionally, the City argues when the government acts in its

“proprietary capacity” with respect to its land “it is governed by the same law and may exercise

the same rights as a private corporation engaged in a similar undertaking.” Zurla v. City of

Daytona Beach, 876 So. 2d 34, 36 (Fla. 5th DCA 2004).

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Conclusions of Law

As a threshold matter, the Court finds that the SCP process, particularly the SCP renewal

process, creates a constitutionally protected expectation and privilege that necessarily requires due

process of law. Bell v. Burson, 402 U.S. 535, 539 (1971); City of Tampa v. Islands Four, Inc., 364

So. 2d 738, 741 (Fla. 2d DCA 1978); Vicbar, Inc. v. City of Miami, 330 So. 2d 46, 47 (Fla. 3d

DCA 1976).

The Court also concludes that Plaintiff is likely to prevail on the merits that the SCP Ordinance

is unconstitutional. First, the SCP Ordinance improperly violates the retroactivity restrictions of

due process. That is, the new SCP Ordinance that was enacted on March 17, 2021 improperly

utilizes prior violations of other ordinances, which may or may not have been previously

adjudicated, to support a new penalty—the denial of a future permit. See Code Section 82-

382(c)(1)a–c. That impermissible retroactive application is unconstitutional. Presmy v. Smith, 69

So. 3d 383, 387 n.1 (Fla. 1st DCA 2011); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d

55, 61 (Fla. 1995).

Secondly, the SCP Ordinance is vague and authorizes excessive discretion on the part of the

City Manager by enabling the City Manager to rely on “[a]ny . . . information which the city

manager, or designee, deems to be relevant,” such as “reviews found on online web-based

platforms, social networking sites or online review sites such as Yelp, Google or Trip Advisor,”

to support the decision to deny an SCP, amongst other reasons. Code § 82-382(c)(1)d and f; see

also Code § 82-381. This makes the renewal process unpredictable and, therefore, prevents a

renewal applicant from having sufficient notice of the objective criteria for renewal. Hartnett v.

Austin, 93 So. 2d 86, 88 (Fla. 1956); Wyche v. State, 619 So. 2d 231, 236 (Fla. 1993). Similarly,

the grant of discretion to the City Manager is excessive, not appropriately regulated by the SCP
 CASE NO: 2021-025673-CA-44

Ordinance, and therefore subject to arbitrary and capricious implementation. Powell v. City of

Delray Beach, 711 So. 2d 1307, 1310 (Fla. 4th DCA 1998); Thomas v. City of W. Palm Beach,

299 So. 2d 11, 14 (Fla. 1974); Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953). The

effect is that the renewal process lacks sufficient Due Process notice. Finally, the Court concludes

the SCP Ordinance specifically excludes any opportunity to contest the denial process and

extinguishes the right of any applicant to appeal the decision to deny the applicant’s SCP made

pursuant to the SCP Ordinance. See Massey v. Charlotte County, 842 So. 2d 142, 147 (Fla. 2d

DCA 2003).

The Court also finds that there is adequate evidence in the record to support a preliminary

finding that the SCP Ordinance has been and will continue to be unconstitutionally applied. A

review of each respective denial letter indicates that the City relied on the unconstitutional

provisions of Sections 82-381(b) and 82-382(c) of the Code by, inter alia, denying Plaintiffs’ SCPs

on prior alleged violations, including violations that had been dismissed, are still under appeal or

that pre-date the amended ordinance (see supra ¶ 7). Additionally, some of the denial letters

demonstrate that the City’s denials of the SCP renewals were based, in part, on unreliable hearsay

in the form of online postings, blogs, and the like (see supra, at ¶8). It also appears the City has

violated the so-called “amnesty” agreement, whereby the City (through a City Commission

Memorandum that was a companion document to a January 27, 2021 amendment of the Code)

indicated that it would not use certain specific prior violations to deny SCP renewals going forward

under the new renewed SCP Ordinance. See Affidavit of Jose Gomez filed in support of the City’s

Opposition (“Gomez Aff.”) at Ex. 8 at p. 49. Therefore, Plaintiffs have demonstrated a reasonable

likelihood of success on the merits as well as irreparable harm and the lack of an adequate remedy

at law.
 CASE NO: 2021-025673-CA-44

A party seeking temporary injunctive relief generally must show (1) the party has a clear legal

right to the requested relief, (2) the party has no adequate remedy at law and will suffer irreparable

harm in the absence of a temporary injunction, and (3) the public interest will be served by a

temporary injunction. ASA Coll., Inc. v. Dezer Intracoastal Mall, LLC, 250 So. 3d 731, 733 (Fla.

3d DCA 2018). As referenced above, the Court concludes that the Plaintiffs have a reasonable

likelihood of success on the merits relative to both constitutional challenges and that the Plaintiffs

have shown a clear legal right to the requested relief. The Court further finds Plaintiffs have no

adequate remedy at law and would suffer irreparable harm. First, any violation of due process

relative to a constitutionally protected interest is by definition irreparable, and thus irreparable

harm is presumed to exist. Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1263–64 (Fla.

2017); Florida Dep't of Health, Office of Med. Marijuana Use v. Florigrown, LLC, 320 So. 3d

195, 200 (Fla. 1st DCA 2019), reh'g denied (Aug. 27, 2019), review granted sub nom. Florida

Dep't of Health v. Florigrown, LLC, 2019 WL 5208142 (Fla. Oct. 16, 2019), and decision quashed

on other grounds by Florida Dep't of Health v. Florigrown, LLC, 317 So. 3d 1101 (Fla. 2021).

Additionally, Plaintiffs would have no adequate remedy at law because the affidavits and verified

pleadings establish that closure of Plaintiff’s sidewalk café operations would likely cause Plaintiffs

to cease their business operations altogether, breach their leases with their landlords, and/or lead

to the termination of hundreds of employees and Florida law recognizes that no remedy at law can

adequately compensate for the loss of a small business. See Hogan v. Norfleet, 113 So. 2d 437,

439 (Fla. 2d DCA 1959); see also Glob. Digital Sols., Inc. v. Grupo Rontan Electro Metalurgica,

S.A., at *3 (S.D. Fla. Feb. 28, 2020), motion for relief from judgment denied, 2020 WL 8816213

(S.D. Fla. Oct. 29, 2020); Mount Sinai Med. Ctr. of Greater Miami, Inc. v. City of Miami Beach,

706 F. Supp. 1525, 1532-33 (S.D. Fla. 1989). Given that the Court has preliminarily found a
 CASE NO: 2021-025673-CA-44

likelihood of constitutional violations, the absence of an adequate remedy at law and sufficient

irreparable harm are both evident. See Gainesville Woman Care, LLC v. State, 210 So. 3d at 1263–

64; Florigrown, LLC, 320 So. 3d at 200.

Finally, the evaluation of public policy and balancing of the equities weighs in favor of granting

the preliminary relief sought by the Plaintiffs. Hundreds of employees will lose their jobs;

businesses that rely heavily on revenues generated during this time of year will either be eliminated

or substantially truncated. On the other hand, although the Court understands the importance of a

municipality’s ability to enforce its laws and regulate business operations within its jurisdiction,

the Court finds no material harm to the City in the maintenance of the status quo and the continued

operation of these thirteen sidewalk cafés otherwise compliant with applicable law until the final

hearing or trial on this matter.

Accordingly, in accordance with Florida Rule of Civil Procedure 1.610(c), it is

ORDERED AND ADJUDGED that Plaintiffs’ motions for preliminary injunction is

granted.

a. The status quo shall be maintained.

b. These thirteen Plaintiffs shall be free to so operate their sidewalk café operations

as previously authorized under their prior sidewalk café permits and without

interruption by the City or City Manager’s arbitrary discretion pursuant to §§ 82-

382 and 82-381 of City’s Code of Ordinances until further order of this Court or

until a final adjudication of this matter.

c. In accordance with Florida Rule of Civil Procedure 1.610(b), the Court hereby

further ORDERS that each Plaintiff post a $3,000 cash bond to the Miami-Dade
 CASE NO: 2021-025673-CA-44

County Clerk of Courts within five days of entry of this Order to be maintained by

the clerk until further order of the Court.

The Court will set a final hearing and/or trial schedule by separate order.

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 12/27/21.

_________________________________________
WILLIAM THOMAS
CIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION

CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email
confirmation which includes all emails provided by the submitter. The movant shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or
hand-delivery, to all parties/counsel of record for whom service is not indicated by the
accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.