HM Florida-ORL, LLC v. DeSantis

Overview

HM Florida-ORL, LLC v. DeSantis is a First Amendment challenge to Florida's Protection of Children Act (Fla. Stat. section 827.11), a 2023 law making it a misdemeanor to knowingly admit a child to an "adult live performance." HM Florida-ORL, which runs the Hamburger Mary's restaurant in Orlando and hosts drag shows, sued the state under 42 U.S.C. section 1983, arguing that the statute's terms "lewd" and "the age of the child present" were unconstitutionally overbroad and vague.

In June 2023, Judge Gregory A. Presnell of the Middle District of Florida granted a preliminary injunction and barred the Secretary of the Florida Department of Business and Professional Regulation from enforcing the Act against anyone in the state. A divided Eleventh Circuit panel affirmed, but the full court granted rehearing en banc.

On August 4, 2026, the en banc Eleventh Circuit (opinion by Judge Brasher) vacated the injunction in its entirety and remanded. It held, first, that the district court lacked authority to issue a universal injunction reaching everyone in Florida under Trump v. CASA, Inc., 606 U.S. 831 (2025); and second, that Hamburger Mary's was not entitled even to a narrower injunction because its claims were unlikely to succeed, reasoning that the Florida Supreme Court's narrowing construction of "lewd" cured any overbreadth and that "the age of the child present" did not render the Act vague. Judge Grant concurred; Judges Rosenbaum and Abudu dissented. The mandate issued September 2, 2026, the stay was lifted, and the case is back before the district court for further proceedings.