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IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 12-37012 CA 24
MIAMI-DADE COUNTY,
Plaintiff,
vs.
JOHN E. DUBOIS,
Defendant.
___________________________/
ORDER GRANTING PRELIMINARY INJUNCTIVE RELIEF
This cause came before the Court on January 15, 2014 upon Miami-Dade County’s
Motion for Preliminary Injunctive Relief. This Court received evidence in the form of Board
Order Number 13-27 from the Environmental Quality Control Board (EQCB) for Miami-Dade
County and the partial transcript of testimony from the EQCB. Based upon the evidence this
Court makes the following findings.
1) This is an action where the Defendant, John Dubois, has been accused of
trimming and altering mangrove trees and filling coastal wetlands in violation of Chapter 24 of
the Miami-Dade County Code (County Code). Said mangrove trees and wetlands are located at a
bay front property owned by Mr. Dubois and is where Mr. Dubois resides.
2) In order to legally trim or alter mangroves in Florida, a person must either obtain
a permit or, in the case of trimming, demonstrate that the trimming meets the statutory
exceptions to the permit requirement. §403.9321 et.seq. Similarly, in order to do any type of
work in a coastal wetland, a person must have a permit. §24.48 Miami-Dade County Code.
Filling a coastal wetland is one of the types of work that requires a permit.
3) As part of the administrative process leading up to the filing of this case, Mr.
Dubois was issued a citation pursuant to Chapter 8CC of the County Code for cutting mangroves
without the required permit. Section 8CC-5 provides for an appeal from the issuance of a
citation. Mr. Dubois chose not to appeal the citation and instead paid the citation. This payment
of the citation constitutes a waiver of the right to appeal the citation and an admission of the
violation. “Failure of the named violator to appeal the decision of the Code Inspector within the
prescribed time period shall constitute a waiver of the violator's right to administrative hearing
before the Hearing Officer. A waiver of the right to administrative hearing shall be treated as an
admission of the violation and penalties may be assessed accordingly.” Section 8CC-5(c) County
Code. As such, for all purposes, Mr. Dubois has admitted the mangrove cutting violation as
alleged in the Complaint. The payment of the citation and the resultant admission are res
judicata with respect to this action. Holiday Inns, Inc. v. City of Jacksonville, 678 So.2d 528
(Fla. 1st DCA 1996); University of Miami v. Zepeda, 674 So.2d 765 (Fla. 3d DCA 1996); See,
Miami-Dade County v. Fernandez, 905 So.2d 213 (Fla. 3d DCA 2005).
4) In addition to the citation, as another part of the administrative process, Mr.
Dubois received a “Notice of Violation” (NOV) and a subsequent “Final Notice Prior to Court
Action.” Each of these notices was appealable to the Environmental Quality Control Board
(EQCB) pursuant to Section 24-11 of the County Code. Mr. Dubois appealed the Final Notice
which encompassed within it the violations cited in the Notice of Violation. That appeal was
heard before the EQCB in nearly nine hours of evidentiary proceedings, with the EQCB issuing
an Order finding that both types of violations set forth in the NOV had occurred.1 That decision
could have been appealed to the Circuit Court Appellate Division, but was not. §24-11, Miami-
Dade County Code That decision is now res judicata with respect to this matter. Holiday Inns,
Inc. v. City of Jacksonville, 678 So.2d 528 (Fla. 1 DCA 1996); University of Miami v. Zepeda,
674 So.2d 765 (Fla. 3d DCA 1996); See, Miami-Dade County v. Fernandez, 905 So.2d 213 (Fla.
3d DCA 2005).
This Court is now faced with the County’s Motion for Preliminary Injunctive Relief
wherein the County is moving the Court for an Order granting injunctive relief concerning the
two violations enumerated. Typically, injunctions require the Court to conduct an evidentiary
hearing and make findings. In this matter, however, the Court has two administrative
determinations that the violations have occurred and those determinations are binding on this
Court under the doctrine of administrative res judicata. For all purposes, the fact that the
violations have occurred has been determined adverse to Mr. Dubois. In light the administrative
determinations that the violations have occurred, this Court must decide if a preliminary
injunction is appropriate.
Preliminary injunctions in code enforcement matters have a much reduced burden in
terms of what the government must prove in order to be entitled to the injunction. Miami-Dade
County v. Fernandez, 905 So.2d 213 (Fla. 3d DCA 2005); Metropolitan Dade County O’Brien,
660 So.2d 364 (Fla. 3d DCA 1995). In general, where there is a clear showing of a violation of
the police power, the government is entitled to relief. “[T]he county and its citizens have a clear
1 This Court notes that during the testimony before the EQCB, Mr. Dubois presented an expert
witness, Stephen Carney, who testified that it was his professional opinion that Mr. Dubois did
commit the violations he is accused of committing.
public interest in compliance with the county’s ordinances and city zoning plan.” Fernandez,
supra, at 216.
The Third District Court of Appeal has held that where the defendants “were aware of
their violations, and continue to violate county ordinances... the trial court abused its discretion
[in denying entry of a preliminary injunction] because the government has a clear legal right to
relief.” Miami-Dade County v. Fernandez, supra, at 215, quoting O'Brien, supra, at 365. In
O’Brien the District Court held that under the “extreme circumstances” of an ongoing violation
of law the government has a “clear legal right to [injunctive] relief:” 660 So.2d at 365; accord,
Fernandez, 905 So.2d 213 (County had clear right to enjoin commercial parties where property
owner lacked proper zoning and certificate of use.); Florida Dep’t of Envt’l Reg. v. Kaszyk, 590
So.2d 1010, 1012 (Fla. 3d DCA 1991) (“Because these activities violated state statutes and
agency regulations, DER had a clear legal right to the injunction.”). The County’s claim for
injunctive relief fits squarely within O’Brien and the other above cited authorities because it
asserts a longstanding and ongoing violation of the Department’s lawful orders to correct known
violations.
Further,“[t]he County has the power to seek injunctive relief as a means of enforcing
compliance with the Ordinances, and ‘an injunction merely requiring compliance with binding
laws cannot be said to unduly harm [the property owner] or to be a disservice to the public.’”
Miami-Dade County v. Malibu Lodging Investments, LLC, 64 So.3d 716 (Fla. 3d DCA 2011),
quoting Polk County v. Mitchell, 931 So.2d 922, 926 (Fla. 2d DCA 2006). This extends to
mandatory injunctions as well. Seaboard System R.R., Inc. v. Clemente, 467 So.2d 348 (Fla. 3d
DCA 1985) (Affirming the trial court order requiring the current property owner and numerous
prior property owners and operators to all participate in the cleanup of the environmental
problems at the property at issue).
5) The County is clearly entitled to injunctive relief in this matter to address and
correct the violations found by the EQCB. This Court must then decide what the appropriate
relief should be that would address and correct the violations found by the EQCB.
The EQCB Order specifically did not determine the extent of the violations on the
property. In order to craft an appropriate resolution of the violations, it will be necessary to
determine the full extent of the violations.
Based upon the foregoing, it is hereby;
ORDERED AND ADJUDGED, that Miami-Dade County’s Motion for Preliminary
Injunctive Relief is GRANTED. The Defendant, John E. Dubois, shall engage appropriate and
competent professional consultants to assess the degree and extent of each of the violations
found to exist by the EQCB Order using standard industry practices. Said assessment shall
include the re-establishment, by a professional land surveyor, of the site’s mean high water line
and jurisdictional wetland boundaries as depicted in the Defendant’s pre-construction survey and
site plan submitted to Miami-Dade County as part of the building permit process for his
residence. This re-establishment shall be done by field marking the mean high water line and
wetland boundaries with survey stakes or similar. Upon the completion of the assessment, the
Defendant, through appropriate consultants shall submit to Miami-Dade County DERM a report
setting forth the full degree and extent of the violations and the methodology for finding and
determining the degree and extent. In addition, the report shall include approvable
recommendations for the proper methodology to correct the violations, through restoration,
remediation, mitigation or such other means as may be legally and environmentally appropriate
and in accordance with the requirements of Chapter 24 of the Miami-Dade County Code. Said
report shall be submitted within 60 days of this Order.
This Order shall remain in full force and effect until complied with or until modified or
terminated by further order of this Court and upon appropriate notice.
The County, being a political subdivision of the State of Florida, the necessity of a bond
is waived in accordance with Rule 1.610(b) Fla. R Civ. Pro (2013).
DONE AND ORDERED in Chambers at Miami-Dade County, Florida this __________
day of _______________2014.
DONE AND ORDERED in Chambers at Miami-
Dade County, Florida, on 03/18/14.
_____________________________ SARAH ZABEL CIRCUIT COURT JUDGE
No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT
The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file.
