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12-37012 Proposed Injunctive Order (Signed Order)

12-37012 Proposed Injunctive Order (Signed Order)

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Published by geniusofdespair
dubois mangrove lawsuit
dubois mangrove lawsuit

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Published by: geniusofdespair on Mar 20, 2014
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03/31/2014

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 IN THE CIRCUIT COURT OF THE 11
TH
 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 according
ly.”
 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.

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