P.M. REALTY & INVESTMENTS, INC., APPELLANT,
v.
CITY OF TAMPA AND GLORIA MOREDA, APPELLEES
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P.M. Realty appeals a permanent injunction against its adult use business in Ybor City, which the trial court granted based on the 'law of the case' doctrine from a prior preliminary injunction ruling. The court reverses, holding that a preliminary injunction does not establish binding law of the case for final judgment, and that intervening Supreme Court and Eleventh Circuit decisions changed the applicable legal standards for evaluating adult business zoning ordinances.
A preliminary injunction does not create binding law of the case at the time of final hearing. The trial court erred by relying on P.M. Realty I as controlling law for summary judgment. The case must be remanded for the trial court to apply current legal standards, including the Renton test and Alameda Books burden-shifting framework.
[1] A preliminary injunction does not establish the law of the case binding at the time of a final hearing.
[2] Zoning ordinances regulating adult businesses must be evaluated under the test set forth in Renton v. …
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Join FLexlaw to unlock all legal intelligence“It is well established that a preliminary injunction does not create law of the case that is binding at the time of the final hearing.”
Establishes the core principle that the trial court improperly relied on the preliminary injunction decision as controlling law.
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Join FLexlaw to unlock all legal intelligenceP.M. Realty operated an adult use business on Seventh Avenue in Ybor City. The City of Tampa and its zoning administrator Gloria Moreda sought to rest…
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ALTENBERND, Chief Judge.
P.M. Realty & Investments, Inc., appeals a permanent injunction restraining its operation of an adult use on Seventh Avenue in Ybor City. The trial court entered final judgment after granting summary judgment in favor of the City of Tampa and Gloria Moreda, in her official capacity as a zoning administrator. The trial court granted summary judgment reasoning that the decision was controlled by the “law of the case” established previously in P.M. Realty & Investments, Inc. v. City of Tampa, 779 So. 2d 404 (Fla. 2d DCA 2000), review denied, 786 So. 2d 580 (Fla.2001) (P.M. Realty I). We reverse.
For our purposes, the facts are adequately explained in P.M. Realty I. That opinion, however, affirmed the entry of a preliminary injunction. It is well established that a preliminary injunction does not create law of the case that is binding at the time of the final hearing. Kozich v. DeBrino, 837 So. 2d 1041 (Fla. 4th DCA 2002); Lorie v. C.L.N., 757 So. 2d 610, 611 (Fla. 3d DCA 2000); Jones v. Sterile Prod. Corp., 658 So. 2d 1099, 1100 (Fla. 5th DCA 1995); see also Goslin v. Glenfed Brokerage Serv., 683 So. 2d 620 (Fla. 2d DCA 1996). P.M. Realty I served only to demonstrate that the City had made a sufficient showing for the issuance of a temporary injunction. See Original Rey de la Pizza Cubana, Inc. v. Rey Pizza Corp., 682 So. 2d 697, 697 (Fla. 3d DCA 1996).
Thus, the trial court entered summary judgment for an incorrect reason.
Between the time of this court’s last opinion in August 2000 and the time of the entry of the permanent injunction in September 2002, there had been substantial developments in the law affecting the zoning of adult uses. During this period, the United States Supreme Court issued City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), and the Eleventh Circuit issued Peek-A-Boo Lounge of Bradenton v. Manatee County, 337 F. 3d 1251 (11th Cir.2003). It is now clear that zoning ordinances regulating the conditions under which adult businesses may operate should be evaluated under the test set forth in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). See Peek-A-Boo Lounge, 337 F. 3d at 1264.
Moreover, the refining of evidentiary burdens announced in Alameda Books would appear to require the trial court to examine more closely the evidence presented at the time of the preliminary injunction. See Alameda Books, 535 U.S. at 438-39, 122 S.Ct. 1728; see, e.g., DiMa Corp. v. High Forest Township, No. 02-3800, 2003 WL 21909571 (D.Minn. Aug.7, 2003) (implementing Alameda Books’ burden-shifting scheme under similar procedural posture).
Accordingly, we conclude the trial court must accord P.M. Realty another hearing at which it applies current law to the relevant evidence.
Reversed and remanded.
SILBERMAN and KELLY, JJ., concur.
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Citator
Cited By
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Hasley v. Harrell, 971 So. 2d 149 (Fla. 2d DCA 2007)…l on the merits— the court heard the parties’ evidence and ruled that the covenants were enforceable. We address this point because of the rule that a true temporary injunction is not law of the case. See P.M. Realty & Invs., Inc. v. City of Tampa, 863 So. 2d 1269, 1270 (Fla. 2d DCA 2004) (and cases cited therein). Underpinning this doctrine is the fact that, at the preliminary injunction stage, the parties are not required to completely prove their cases. Thus, an appellate court’s ruling “on a preliminary i…
Authorities Cited
- City OF Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (U.S. 2002)
- Peek-A-Boo Lounge OF Bradenton, Inc. v. Manatee Cnty., 337 F.3d 1251 (11th Cir. 2003)
- P.M. Realty & Invs., Inc. v. City OF Tampa, 779 So. 2d 404 (Fla. 2d DCA 2000)
- EL Segundo Original REY DE LA Pizza Cubana, Inc. v. REY Pizza Corp., 682 So. 2d 697 (Fla. 3d DCA 1996)
- Kozich v. DeBRINO, 837 So. 2d 1041 (Fla. 4th DCA 2002)
- Lorie v. C.L.N., 757 So. 2d 610 (Fla. 3d DCA 2000)
- Jones v. Sterile Prods. Corp. & Nat'l Fire Ins. Co. of Hartford, 658 So. 2d 1099 (Fla. 5th DCA 1995)
- Goslin v. Glenfed Brokerage Servs., 683 So. 2d 620 (Fla. 2d DCA 1996)