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

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, MiamiDade 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 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

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 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

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 Defendants 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 MiamiDade 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.

JUDGE Copies furnished to: Robert@miamidade.gov HCR2@miamidade.gov mdcpr.jl@gmail.com jlukacs@hinshawlaw.com smoya@hinshawlaw.com JDubois@eyecast.com