Boardwalk Bros. v. Satz

949 F. Supp. 2d 1221, 2013 WL 2433226, 2013 U.S. Dist. LEXIS 78341
CourtDistrict Court, S.D. Florida
DecidedJune 4, 2013
DocketCase No. 13-61089-CIV
StatusPublished
Cited by1 cases

This text of 949 F. Supp. 2d 1221 (Boardwalk Bros. v. Satz) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boardwalk Bros. v. Satz, 949 F. Supp. 2d 1221, 2013 WL 2433226, 2013 U.S. Dist. LEXIS 78341 (S.D. Fla. 2013).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Plaintiffs’ Motion for Preliminary Injunction [DE 5] (“Motion”).1 The Court has carefully considered the Motion, Defendant Seminole Tribe’s' Response [DE 12] (“Seminole Tribe Response”), Defendant Michael Satz’s Response [DE 13] (“Sate Response”), Plaintiffs’ Reply [DE 19] (“Reply”), the argument of counsel at the May 31, 2013 hearing, the record in the case, and is otherwise advised in the premises.

I. BACKGROUND

On April 18, 2013, Plaintiffs Boardwalk Brothers, Inc. and Play It Again Fla., LLC (collectively “Plaintiffs”), operators of amusement game arcades, filed a complaint in the Circuit Court for the 17th [1223]*1223Judicial District in and for Broward County which challenges the constitutionality of newly enacted Chapter 2013-2. The statute excludes from the definition of amusement games or machines “casino style games in which the outcome is determined by factors unpredictable by the player or games in which the player may not control the outcome of the game through skill.” Fla. Stat. § 849.161(l)(a). On April 24, 2013, Plaintiffs filed the instant Motion which seeks a preliminary injunction enjoining enforcement of tbe statute. A copy of the Complaint and the Motion were mailed and emailed to Defendant Michael Satz, State Attorney for the 17th Judicial Circuit in and for the State of Florida (“Satz”) and the Florida Attorney General on April 24, 2013. Defendant Satz was personally served with the Complaint on May 7, 2013. Defendant Satz removed the case to this Court on May 14, 2013. Notice of Removal [DE 1]. On May 15, 2013, the Court granted the Seminole Tribe of Florida’s (“Seminole Tribe”) unopposed motion to intervene as a Defendant in this matter. See Order Granting the Seminole Tribe of Florida’s Motion to Intervene [DE 4],

In the Complaint2, Plaintiffs contend that Chapter 2013-2 which amends Fla. Stat. §§ 849.16 and 849.161 is “arbitrary, irrational, not reasonably related to a legitimate governmental purpose, and void for vagueness.” Compl. ¶ 11. Plaintiffs argue that because amusement games are not illegal under Florida law, limiting operation of the machines to “insertion of a coin” is vague, arbitrary, and not rationally related to any legitimate government purpose.” Id. ¶ 12. The Plaintiffs also allege that the definition of “merchandise” under the statute is vague, arbitrary, and not related to any legitimate governmental purpose as is the exclusion of “gift cards or certificates” from this definition. Id. ¶ 13. Plaintiffs contend that the statute’s exclusion of “casino style games in which the outcome is determined by factors unpredictable by the player or games in which the player may not control the game” from the definition of amusement games or machines is void for vagueness. Id. ¶ 14. Finally, Plaintiffs argue that the phrases “[o]utcome is determined by factors unpredictable to the player,” id. ¶ 15, and “[g]ames in which the outcome of the game through skill” are void for vagueness. Id. ¶ 16. Plaintiffs have now moved for a preliminary injunction in which they seek to enjoin enforcement of Fla. Stat. § 849.161 on the grounds that Fla. Stat. § 849.161(l)(a) is facially unconstitutional because it is void for vagueness.3 Defendants Satz and Seminole Tribe oppose the Motion.

II. DISCUSSION

A. Legal Standard.

Federal procedure governs whether a preliminary injunction is appropriate in this case. See Ferrero v. Associ[1224]*1224ated Materials Inc., 923 F.2d 1441, 1448 (11th Cir.1991). To obtain a preliminary injunction, a plaintiff must establish: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if- the defendant is not enjoined; (3) the threatened injury to the plaintiff outweighs ■ the harm an injunction may cause defendant; and (4) the injunction would not disserve the public interest. See Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir.1995). “[A] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to each of the four prerequisites.” Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir.2003) (quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998) (internal citations and quotations omitted)).

Here, Plaintiffs raise a facial challenge to the constitutionality of Fla. Stat. § 849.161(l)(a). See Motion at 6 (“The facial unconstitutionality of Florida Statute section 849.161(l)(a) requires that it be invalidated.”). “A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself.” Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294, 1302 (11th Cir.2013) (quoting Horton v. City of St. Augustine, 272 F.3d 1318, 1329 (11th Cir.2001) (internal quotation marks omitted)). In order to successfully bring a facial challenge, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” Id. (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

Specifically, Plaintiffs argue that Fla. Stat. § 849.161(l)(a) is void for vagueness. Motion at 2. “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Gonzales v. Carhart, 550 U.S. 124, 148-49, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).

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949 F. Supp. 2d 1221, 2013 WL 2433226, 2013 U.S. Dist. LEXIS 78341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boardwalk-bros-v-satz-flsd-2013.