Allied Veterans of the World, Inc.: Affiliate 67 v. Seminole County, Florida , 468 F. App'x 922 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 21, 2012
No. 11-12185
JOHN LEY
________________________
CLERK
D.C. Docket No. 6:11-cv-00155-JA-GJK
ALLIED VETERANS OF THE WORLD, INC.: AFFILIATE 67,
Florida non-profit corporation,
ALLIED VETERANS OF THE WORLD, INC.: AFFILIATE 74,
Florida non-profit corporation,
Plaintiffs-Appellants,
PHONE-SWEEPS, LLC,
JACK’S BUSINESS CENTERS, LLC,
HASSAN SALEM MALIH,
DARRELL AGOSTINO,
Intervenors-Appellants,
versus
SEMINOLE COUNTY, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 21, 2012)
Before MARCUS, COX, and SILER,* Circuit Judges.
PER CURIAM:
Plaintiffs and Intervenor-Plaintiffs (collectively “Plaintiffs”) challenge on
First Amendment grounds an ordinance passed by the Defendant Seminole
County, Florida. The ordinance bans the operation of “simulated gambling
devices” in the County. In response to Plaintiffs’ motions for a preliminary
injunction, the district court decided that the Plaintiffs had not shown a substantial
likelihood of success on the merits of their First Amendment claims. The court
denied the motions, concluding that the ordinance regulated conduct—not speech.
On appeal, Plaintiffs argue that the district court erred in this interpretation of the
ordinance. Plaintiffs contend that the ordinance is a content-based restriction on
speech, and ask that this court remand with instructions to enter a preliminary
injunction.1
“A district court may grant [preliminary] injunctive relief only if the moving
party shows that: (1) it has a substantial likelihood of success on the merits; (2)
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
1
Federal Rule of Appellate Procedure 28(a)(10) requires that the argument made in the brief
contain “a short conclusion stating the precise relief sought.” Plaintiffs’ brief concludes, “[T]he
Court should reverse the district court’s order and remand for entry of a preliminary injunction
enjoining enforcement of the challenged Seminole County ordinance until final judgment on the
merits.” (Appellants’ Br. at 45.)
2
irreparable injury will be suffered unless the injunction issues; (3) the threatened
injury to the movant outweighs whatever damage the proposed injunction may
cause the opposing party; and (4) if issued, the injunction would not be adverse to
the public interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en
banc) (citations omitted). The movant must clearly carry the burden of persuasion
as to each of these four requisites. ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch.
Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (citing All Care Nursing Serv., Inc. v.
Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)). “Because a
preliminary injunction is ‘an extraordinary and drastic remedy,’ its grant is the
exception rather than the rule . . . .” United States v. Lambert, 695 F.2d 536, 539
(11th Cir. 1983) (quoting Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir.
1975)).
“We review the decision to deny a preliminary injunction for abuse of
discretion.” Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039
(11th Cir. 2011) (quoting Scott v. Roberts, 612 F.3d 1279, 1289 (11th Cir. 2010)).
This limited review is necessitated because the grant or denial of a
preliminary injunction is almost always based on an abbreviated set
of facts, requiring a delicate balancing of the probabilities of ultimate
success at final hearing with the consequences of immediate
irreparable injury which could possibly flow from the denial of
preliminary relief. Weighing these considerations is the
responsibility of the district court . . . .
3
Revette v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 740 F.2d
892, 893 (11th Cir. 1984) (alteration in original) (citations omitted). And, we may
review the grant or denial of a preliminary injunction without reviewing the
“intrinsic merits” of the case. Id.After thoughtfully considering the parties’ briefs and having the benefit of
oral argument, we affirm the district court’s denial of Plaintiffs’ motions for a
preliminary injunction. We agree with the district court that a threshold issue is
whether the ordinance regulates speech or conduct, but we need not resolve this
issue to decide this appeal. Whether the district court’s determination of this point
is right or wrong, the record before us indicates no abuse of discretion in the
denial of preliminary injunctive relief. See Cafe 207, Inc. v. St. Johns County, 989
F.2d 1136, 1137 (11th Cir. 1993). If we were to assume that the ordinance
regulates speech, rather than conduct, other hurdles the Plaintiffs would have to
clear in order to succeed remain. Some present complex issues that should not be
decided without the benefit of a well-developed record. We hold, therefore, that
the district court did not abuse its discretion in denying preliminary injunctive
relief.
After the district court’s final decision regarding injunctive relief we can, if
asked, conduct a more thorough review.
4
AFFIRMED.
5