Manatee County v. J. Richard Kaiser Enterprises, Inc., et al.

Manatee County appeals the dismissal of an order to show cause why the
appellees, J. Richard Kaiser Enterprises, Inc., OuterLimits, Inc., and Florida Club

Concepts Limited Partnership ("OuterLimits"), should not be held in contempt for
violation of an injunction. We find no abuse of discretion in the trial court's conclusion
that a finding of contempt was not warranted. Nevertheless, we reverse because the
trial court erroneously concluded that Manatee County failed to establish that
OuterLimits violated the injunction and, thus, did not consider whether OuterLimits
should be declared a nuisance.

OuterLimits is a nightclub catering to young adults. The foundation for this
appeal was laid several years ago when Manatee County sought to enjoin OuterLimits
as a public nuisance because of excessive noise and disorderly behavior in its parking
lot. That lawsuit was the impetus for negotiations between Manatee County and
OuterLimits that resulted in OuterLimits consenting to entry of an injunction in which it
agreed to limit noise and vibrations emanating from its premises, prohibit any activities
on the premises after 2:30 a.m. other than normal cleaning and maintenance, and
provide crowd and noise control in its parking lot by employing no fewer than ten offduty
deputies or licensed security service personnel on Friday, Saturday, and Sunday
nights. If OuterLimits failed to fulfill its agreement, the injunction gave the circuit court
authority to hold OuterLimits in contempt or to find that it constituted a public nuisance.
OuterLimits subsequently violated the injunction, and Manatee County
sought relief. This resulted in an order that found OuterLimits in civil contempt. The
problems at OuterLimits continued, however, and Manatee County again sought relief,
this time requesting an order of contempt, sanctions, and a declaration that OuterLimits
was a public nuisance. The trial court reopened the case and issued an order to show

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cause why the relief requested by Manatee County should not be granted. OuterLimits
responded with a motion to dismiss the order to show cause.

After an evidentiary hearing, the trial court dismissed the order to show
cause. We affirm without comment the trial court's decision not to find OuterLimits in
contempt. However, we find error in the trial court's failure to consider whether
OuterLimits should have been declared a public nuisance. This error by the trial court
arose from its interpretation of the injunction. Thus, we review this aspect of the trial
court's order de novo. See Angell v. Don Jones Ins. Agency, Inc., 620 So. 2d 1012 (Fla.
2d DCA 1993) (stating that because the interpretation or construction of a written
instrument is a matter of law, an appellate court is not restricted in its ability to reassess
the meaning and effect of a written instrument to reach a conclusion contrary to that of
the trial court).

In pertinent part, the injunction states:

Upon presentation of an affidavit that the Defendants, or any
of them, have committed any act prohibited by the injunction,
the Court may issue an Order to Show Cause why the
Defendants, or any of them, shall not be held in contempt of
court or find that the OuterLimits' premises constitutes a
public nuisance. After an appropriate hearing and upon
proper proof, the Court may find the OuterLimits is operating
as a public nuisance, and/or order sanctions. . . .

The trial court issued the order to show cause based upon Manatee County's affidavits
as contemplated by the injunction. However, at the hearing, the trial court prohibited
Manatee County from offering evidence to establish that OuterLimits constituted a
public nuisance as defined by section 823.05, Florida Statutes (2002).

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The trial court placed this limitation on Manatee County because it
believed that the only basis upon which it could declare OuterLimits a public nuisance
was for violations of the injunction and that if Manatee County wanted OuterLimits
declared a public nuisance as defined by section 823.05, it would have to file a separate
lawsuit. We find nothing in the injunction that supports the trial court's conclusion. On
the contrary, "proper proof" to establish that OuterLimits was a nuisance would go
beyond what would suffice to prove a violation of the injunction. Proof of a violation
simply opened the door to two potential remedies: contempt and sanctions or a
declaration of nuisance. While proof to support a finding of contempt would be limited
to violations of the injunction, there is no basis to place such a limit on proving that
OuterLimits is a public nuisance.

Having limited Manatee County's evidence to proof of violations of the
injunction, the trial court then concluded that Manatee County failed to prove that
OuterLimits violated the injunction. This, too, was error involving the trial court's
interpretation of the injunction.

The injunction provides that it is violated if at least two individuals
complain to the sheriff's office regarding excessive noise. The trial court acknowledged
that Manatee County had proven the requisite complaints, but nevertheless concluded
that this was not enough to establish a violation of the injunction. The trial court based
this conclusion on a provision of the injunction that states:
Sounds and/or vibrations at the property line of OuterLimits
at all times shall not exceed a level that disturbs the peace,
or that may be harmful or injurious to the health and welfare
of a reasonable person with normal sensitivities, or which
unreasonably interferes with the enjoyment of life, property

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or outdoor recreation of nearby residents. Complaints to the
Manatee County Sheriff's Office made by two or more
persons on any given day or night about noise and/or
vibrations emanating from OuterLimits shall constitute prima
facie evidence that the noise and/or vibration level has
exceeded this standard, unless it can be determined
objectively by the appropriate sound-measuring equipment
that the standard has not been exceeded.

The trial court concluded that this provision could not be enforced because it did not
specify who was required to provide the objective evidence, and it did not contain a
requirement that OuterLimits be notified of the complaints so it could take sound
measurements to rebut the complaints.

As to the latter, it is irrelevant that the terms of the injunction did not
require Manatee County to notify OuterLimits of any complaints regarding excessive
noise. OuterLimits never argued that the noise provision could not be enforced based
on the absence of such a requirement, nor did it ever seek to have the injunction
clarified or modified to include such a requirement even though in the past it had been
held in contempt for violating the injunction based on excessive noise. The injunction
was a product of negotiations between OuterLimits and Manatee County, and
OuterLimits agreed to be bound by its terms as written. Accordingly, there was no basis
for the trial court to refuse to enforce that provision because of a perceived defect that
the parties to the injunction never sought to remedy.

As to the former, the injunction clearly places the obligation to take sound
measurements on OuterLimits if it wants to rebut noise complaints. In fact, OuterLimits
acknowledged this in its motion to dismiss the order to show cause in which it stated
that "[i]f the sheriff receives the requisite number of complaints, the defendants must,

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according to the order, demonstrate by the appropriate sound-measuring equipment
that the standard has not been exceeded." (Emphasis supplied.) Accordingly, the trial
court's conclusion that the agreement was vague because it did not specify which party
was to obtain sound measurements is not supported either by the injunction itself or by
OuterLimits' own position regarding its obligations under the injunction.

The trial court also erred when it concluded that OuterLimits had not
violated the provision in the injunction that required it to maintain adequate security to
control noise and crowds. Manatee County presented unrebutted testimony that
OuterLimits did not employ enough off-duty deputies or security personnel to maintain
crowd or noise control. The trial court itself found that
[t]he County presented a plethora of evidence that even an
additional ten deputies is still inadequate security in the
parking lot and surrounding areas of the OuterLimits to keep
patrons who are leaving the club in the early morning from
turning up their boom box stereos as they are leaving the
parking lot -- the most common complaint from the
neighbors, nor is it sufficient to insure the safety of the
officers who work there or who are called from other zones
to respond to the area. The record is replete with evidence
that experienced, informed law enforcement officers are
extremely concerned for the safety and welfare of their own
and the public.

The trial court nevertheless found no violation, stating that these matters were outside
the scope of the injunction.

We believe the trial court erred in its conclusion regarding the scope of the
injunction. The trial court relied on the provision in the injunction that states OuterLimits
shall have "no fewer than ten (10) off-duty deputies or other licensed security service
personnel" on Friday, Saturday, and Sunday nights. (Emphasis supplied.) The trial

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court correctly found that Manatee County failed to prove that there were not at least ten
security personnel at the club on those days. However, in finding that Manatee
County's evidence went to matters beyond the scope of the injunction, the trial court
overlooked the fact that the same provision requiring at least ten deputies or security
personnel also states:

The guiding principle shall be that at all times, OuterLimits
shall have on the premises sufficient off-duty deputies or
licensed private security personnel to maintain crowd and
noise control so as not to unreasonably interfere with the
enjoyment of life, property or outdoor recreation of
neighboring residents, or cause harm or injury to the health
and welfare of a reasonable person with normal sensitivities.

Thus, OuterLimits' ultimate obligation under this provision was not simply to employ ten
deputies or security personnel, but rather was to employ enough to control the crowd
and the noise. The County's evidence as described by the trial court established
OuterLimits' failure to satisfy that obligation and thus did not pertain to matters beyond
the scope of the injunction.

Because Manatee County satisfied its obligation to prove a violation of the
injunction, the trial court should have considered whether to declare OuterLimits a
public nuisance. Manatee County was entitled to submit evidence to support such a
finding. Accordingly, we reverse. On remand, Manatee County should be given the
opportunity to offer additional evidence in support of its request to have OuterLimits
declared a public nuisance. If it does not wish to present additional evidence, then the

1 Manatee County has argued that even with the evidentiary limitations imposed
by the trial court, the evidence in the record conclusively proves that OuterLimits is a
public nuisance. We have declined Manatee County's invitation to make that
determination in this appeal because the trial court has never addressed that issue.

Our opinion should not be read to express any position regarding whether the evidence
in the record would support such a finding.

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trial court shall make that determination based on the evidence presented at the
previous hearing.1