Appeals Court Will Decide if Flagler Beach Shopping Center Can Legally Ban Coastal Family Church Services

It is one of the most consequential cases being litigated in Florida today: Can a shopping center forbid a church from holding services? 

Coastal Family Church of Flagler Beach says absolutely not. It’s a First Amendment issue, a religious rights issue. 

Flagler Square Jax, the company that oversees two of the three units in the shopping center just west of the Flagler Beach bridge, and where Coastal bought the third and largest space last year, says it absolutely may ban church services. It has nothing to do with the First Amendment, the company says. It is a property rights matter, and it is spelled out in the shopping center’s “Declaration of Condominium”’s prohibited uses. It isn’t Christian or religious services per se that are prohibited, but “public assembly.” 

Shopping centers prohibit such assemblies all over the country, usually over parking concerns, just as they do numerous other businesses and services for similar or other reasons, from porn shops and strip joints to car rentals to theaters, arcades, laundromats, massage parlors and all sorts of other uses. Such prohibitions are ordinary from private businesses. 

Last August, after Coastal Church won a zoning exception from Flagler Beach enabling it to hold services, and held events or services at its location, Flagler Square sued Coastal Family Church Pastor Roderick Palmer as a church trustee. 

In late January–after a January 14 hearing–Circuit Judge Sandra Upchurch issued an injunction against Palmer, prohibiting church services in the 19,000-square-foot space that had previously been a Babcock Furniture store, and many years before that, a Food Lion. The church, which says it has a congregation of 400, filed an emergency motion at the Fifth District Court of Appeal and won a temporary stay of the injunction. But on Feb. 13 the court denied the motion. An appeal to the Supreme Court was dismissed. In-person services at Coastal Community were suspended pending the resolution of the case. 

The church has since been communicating with its congregants through its YouTube channel, among other platforms, and holding some services virtually, like an upcoming Easter service. 

Meanwhile, lawyers have been dueling through their briefs, which most of the time decide cases on appeal, though the court may request oral arguments. Palmer’s lawyers filed their brief on Feb. 16. Flagler Square’s lawyers filed theirs yesterday (April 1), after getting an extension from the court. 

Flagler Square is represented by Plantation, Fla.-based Frank, Weinberg & Black. Palmer is represented pro bono by the controversial Liberty Counsel, an Orlando-based non-profit that militantly advocates and often successfully litigates for Christian causes and against secularism, and especially against LGBTQ+ equality and rights. The Human Rights Campaign calls it “rabidly anti-LGBT” and the Southern Poverty Law Center designates it as a hate group.

The briefs are written versions of oral arguments, minus the questions from judges. They sum up the arguments each side would make at oral arguments, using long lists of legal precedents and other documents to support their arguments. Those positions do not substantially change as a case moves forward. The two sides’ arguments have not been reported until now–indeed, Flagler Square’s arguments could not have been, since they were filed only on Wednesday, even though the company’s brief is an elaboration of the points it made at the trial level in a shorter complaint. 

Palmer’s appeal challenges the temporary injunction order issued by Upchurch in circuit court. It does so on several grounds: “it violates [Palmer and the church’s] First and Fourteenth Amendment rights; is a presumptively unconstitutional prior restraint on [Palmer’s and the church’s] speech, assembly, and religious exercise; and is impermissibly and unconstitutionally vague and overbroad.” The “overbroad” reference is to the language of the restriction on “public assembly.” In fact, the terms are nowhere in the covenants precisely defined. 

Palmer also argues that the injunction is causing “irreparable harm” to the church, and that the trial court’s finding against him was “contradictory, speculative, and unsupported by substantial, competent evidence.”

One of the church’s stronger arguments is its allegation that Flagler Square’s covenants are imposed capriciously or preferentially. Flagler Square leases one of its units to a Dollar Tree, and has subdivided the rest into smaller storefronts, among them the Dwyer and Knight Law Firm, a branch of the Flagler County Tax Collector’s Office, Junque in the Trunk (“a consignment store, prohibited by the alleged restrictions at issue here,” the brief states), and a Fraternal Order of Police lodge, “which explicitly advertises and hosts numerous public assembly events (also prohibited by the alleged restriction at issue here), including public bingo nights (every week) and rents its facility for public assembly.”

The church also alleges that Flagler Square has hosted car shows, flea markets and other public assemblies in the parking lot, all ostensibly prohibited by its own declarations.

“The undisputed evidence before the circuit court showed that [Flagler Square] has engaged in a selective, unreasonable, discriminatory, and, thus, arbitrary, enforcement of the Declaration’s land use restrictions,” Palmer’s brief states in one of its stronger passages. Flagler Square “has targeted only [Coastal Church’s] religious services, while ignoring other tenants’ non-religious gatherings (public assemblies) purportedly in violation of the Declaration, and it has conducted its own activities that constitute the allegedly prohibited ‘public assembly’ restriction in the Declaration. The sworn testimony demonstrating the selective enforcement was not disputed below and is not disputed now.”

Neither the circuit court nor Flagler Square disputed those facts. But the court found that the leases for those other businesses predate Flagler Square’s declaration. In other words, they were grandfathered.

The church contends that it can seat 564 individuals, not 2,401, as Flagler Square says, and previous events have shown that there was no parking congestion (the parking lot accommodates 315 vehicles). The church says it’s never used more than 162 of the spaces.  

The heart of its argument though reverts to something closer to polemic than legal reasoning, calling the injunction “a presumptively unconstitutional prior restraint,” and hectoring (with such phrases as “to contend otherwise”) that the trial court turned “a blind eye to significant and binding precedent holding that court orders are state action, that court orders can violate the First Amendment, and that court orders can violate Florida’s Religious Freedom Restoration Act.”

The charge that the court’s “state action” violating the Constitution and Florida’s religious freedom act is central to the church’s argument. Flagler Square sees it as a rhetorical leap over the matter of private and enforceable property rights, which the court was apparently upholding. And if there is one thing stronger in American law than all constitutional rights–including the First Amendment–since the days of John Marshall, it is property rights (unless a litigant can prove “state action”). 

That’s where Flagler Square’s brief focuses from the start: “Contrary to what [Palmer] asserts, this is not a case about state action, or violations of Constitutional rights, or interference with the [the church’s] free exercise of religion,” it states. “Rather, it is based upon the enforcement of a covenant that runs with the land.” It is not nearly as exciting or sensational: property law is as prosaic as it gets. But it is powerful and usually prevailing law. 

Palmer and the church bought their unit fully aware of the Declaration of Condominium and its “Restriction 19,” which prohibits using units as a “banquet hall, auditorium or other place of public assembly,” the brief states. There were signatures below bold, capitalized type that the buyer acknowledged receiving a copy of the declaration. 

In somewhat of a reach, Flagler Square rejected the church’s claim that “public assembly” was not defined, since the county code includes a specific definition that includes churches. Nevertheless, the seller of the unit had warned Coastal in writing “via its legal representatives, that Unit 1, could not be used as a church or other place of assembly to conduct church services in Unit 1 because such use was violative of Restriction 19,” the brief states. Three days after Coastal signed a “pre-occupancy” agreement, it held a fundraiser with some 400 people, the brief states. The seller admonished the church and “categorically warned [Palmer] that he could not, under any circumstances, use Unit 1 as a place of public assembly (i.e. as a church) on March 24, 2025.”

Flagler Square’s lawyers describe Palmer or the church as flouting the declaration and wanting to play by their own rules, using the bombast of speech restrictions and constitutional violations. Palmer “misses the mark – there is no restriction in the [injunction] as to speech and free exercise of religion whatsoever,” Flagler Square’s lawyers write. “In fact, the only thing that the [injunction] does is prohibit, during the proceedings below, the use of Unit 1 as a place of public assembly as prohibited by the recorded Declaration. It is content neutral in all respects and does not attempt to curb or limit speech or free exercise of religion, despite the argument of [Palmer], then and now.”

In other words, the assembly in Unit 1 could have been for a secular carnival: Flagler Square’s reaction would have been the same. The brief goes to some length to reject the constitutional claims, repeatedly bringing back the issue to an assertion of property rights and covenants and rejecting as “absurd” the church’s claim that Flagler Square is attempting to create a “First Amendment Free Zone” there. 

“The Trial Court’s [injunction] does nothing to restrict the Appellant from free exercise of his religion, nor does it restrain his speech in any way. It only restricts the use of Unit 1 as a place of public assembly,” the brief states. 

The Fifth District Court of Appeal does not say when it rules on cases. It could be weeks. It could be months. When it does, it is likely that the decision will be appealed to the Supreme Court.