Jupiter's Harbourside Place Loses Federal Appeal Over Town Music Rules

The Harbourside Place waterfront destination in Jupiter lost its federal appeal challenging a town code provision that prohibited it from hosting live music performances.

The U.S. Court of Appeals for the Eleventh Circuit on Thursday upheld a district court decision rejecting Harbourside’s request for preliminary injunction.

Harbourside appealed U.S. District Judge Kenneth Marra’s denial two years ago. Circuit Judges Adalberto Jordan and Jill Pryor as well as Chief Judge L. Scott Coogler of the Northern District of Alabama, who was sitting by designation, unanimously affirmed Marra.

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The 11-acre Harbourside Place complex, which has nine restaurants, more than a dozen shops, an amphitheater and hotel, sued Jupiter and the affluent town’s Community Redevelopment Agency in 2016 over its amplified sound ordinance.

Harbourside was developed by Nicholas A. Mastroianni II’s Allied Capital & Development of South Florida LLC. The restaurants include The Woods, golf great Tiger Woods’ flagship eatery.

The landlord argued the town ordinance on outdoor live music was based on content in violation of the First and Fourteenth amendments and the town’s required special permit amounts to prior restraint. Harbourside also argued it qualifies as an outdoor venue, which under the code allows it to host bands and singers.

Harbourside attorney Paul Figg, partner at Berger Singerman in Fort Lauderdale, declined comment on the opinion. Figg is working with Berger founding partner Mitchell Berger and partner Anthony Carriuolo in Fort Lauderdale. Also on the case was Zachary Hyman, an associate who left the firm this year.

Jupiter’s outside counsel — Roberts, Reynolds, Bedard & Tuzzio founding partners George P. Roberts Jr. and Lyman H. Reynolds Jr. — didn’t respond to a request for comment by deadline.

Jordan, who wrote the opinion, noted three town staff members, including the zoning director and assistant director, signed affidavits saying Harbourside didn’t satisfy either most or all of the city’s requirements to qualify as an outdoor venue. The town’s two outside acoustical engineers said Harbourside exceeded sound standards and sometimes its sound limiter didn’t work or wasn’t used.

Issues seem to have started when the Water’s Edge Estates single-family home community across the Intercoastal Waterway complained about loud music at the amphitheater.

The town adopted amplified sound restrictions, but Harbourside sued before the town enacted the new regulation. It prohibited amplified sound from 11 p.m. to 7 a.m. except for properties approved as outdoor venues, which could play until midnight. The decibel limits are 65 decibels from 7 a.m. to 11 p.m., 55 decibels from 11 p.m. to midnight and 50 decibels from midnight to 7 a.m. A lawn mower’s decibel level is about 90.

In its opinion, the panel noted Harbourside didn’t mention its prior restrain argument in its opening statements or closing arguments at the injunction hearing. It also didn’t seek invalidation of the special permit requirement based on First Amendment grounds.

Jordan pointed out prior restraint is allowed in certain cases where they regulate time, place and manner rather than content.

The appellate panel went on into a deep exploration of Harbourside’s allegation that the town’s sound regulation is based on content in violation of the First Amendment. On one side, the code doesn’t regulate specific types of music.

The ordinance “applies to all live musical performances regardless of type (i.e., both vocal and instrumental); and does not favor classical over country, gospel over grunge, hip hop over heavy metal, or rock over rap,” Jordan wrote.

On the other side, there is an argument the ordinance is content-based because it regulates live music but not other types of sound such as political events and religious sermons.

In support of its First Amendment argument, Harbourside said live musical performances have an element of personal expression.

Jordan suggested another issue favoring Harbourside that it didn’t raise: Performers who haven’t recorded their music would be left without a feasible communication method under the town code. The counterargument is that Jupiter allows recorded music of any kind at commercial properties as long as it complies with other parts of the code, the judge said.

Despite delving deep into the various arguments, the panel said it held no views on the merits of Harbourside’s allegations and instead used “judicial minimalism” to reach its conclusion. The panel based its decision on whether the district court abused its discretion in denying Harbourside’s motion.

“We recognize that we have said a lot but decided relatively little,” Jordan concluded. “Because the district court did not abuse its discretion, we affirm its order denying Harbourside’s motion for a preliminary injunction.”

The case is headed back to district court for a trial on the merits unless Harbourside tries to revive its appeal.

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