12-37012Injunctive Order (Signed Order)

8/12/2019 12-37012Injunctive Order (Signed Order)

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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 Countys

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


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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


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an Order finding that both types of violations set forth in the NOV had occurred.1That 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 judicatawith 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 Countys 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 OBrien,

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

1This 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.


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public interest in compliance with the countys 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

OBrien 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 Dept of Envtl 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 Countys claim for

injunctive relief fits squarely within OBrien and the other above cited authorities because it

asserts a longstanding and ongoing violation of the Departments 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


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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 Countys 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 sites mean high water line

and jurisdictional wetland boundaries as depicted in the Defendantspre-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,


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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 ZABELCIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION

CLERK TO RECLOSE CASE IF POST JUDGMENTThe parties served with this Order are indicated in the accompanying 11th Circuit emailconfirmation which includes all emails provided by the submitter. The movant shallIMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email orhand-delivery, to all parties/counsel of record for whom service is not indicated by theaccompanying 11th Circuit confirmation, and file proof of service with the Clerk ofCourt.

Signed original order sent electronically to the Clerk of Courts for filing in the Court file.


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JUDGE

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12-37012Injunctive Order (Signed Order)