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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 15-20336-CIV-MARTINEZ-GOODMAN

JOHN E. DUBOIS,

Plaintiff,

v.

MIAMI-DADE COUNTY, by and through the Regulatory and Economic Resources Department, LEE HEFTY, individually, and JACK OSTERHOLT, individually Defendants, __________________________________/

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

COMES NOW Plaintiff, John E. DuBois, sues the Defendant, Miami-Dade County

(hereinafter the County) and alleges as follows:

Jurisdiction and Venue

1. Plaintiff invokes the Courts jurisdiction under 28 U.S.C. 1331, as this case

arises under the Constitution and laws of the United States.

2. The events giving rise to this action occurred in Miami, County of Miami-Dade,

Florida.

3. Plaintiff is an individual residing in and owning property located at 17575 and

17505 Old Cutler Rd, Palmetto Bay, FL 33157 (hereinafter subject property)

4. Defendant Miami-Dade County is a municipality in a Florida County and a

person within the meaning of 42 U.S.C. 1983 and is a legal entity suable in its own name

under Florida law.

Case 1:15-cv-20336-JEM Document 10 Entered on FLSD Docket 03/30/2015 Page 1 of 28

5. The Department of Environmental Resources Management (hereinafter DERM)

is a division within the Regulatory and Economic Resources Department of Miami Dade County.

6. On November 21, 1995 Miami-Dade County Manager Armando Vidal executed

an Order of Delegation and Operating Agreement between the Florida Department of

Environmental Protection and Metropolitan Dade County regarding the regulation of mangroves.

Pursuant to this order of delegation, final decision and policymaking authority with regards to

the implementation and execution of Florida Statute 403.9321-403.9333, the Mangrove

Trimming and Preservation Act (hereinafter MTPA), was vested in DERM. The purpose of

the delegation agreement was to delegate the Florida Department of Environmental Protections

authority to regulate the trimming and alteration of mangroves to counties and municipalities.

7. Defendant Lee Hefty (hereinafter Hefty) is an individual residing in and

maintaining employment with Miami Dade County. Hefty has been the Director of DERM since

his appointment as interim director by Miami-Dade County Mayor Carlos Gimenez on August 9,

2011 and has been employed by DERM since 1990. From August 2008-August 2011 Hefty was

Assistant Director of DERM responsible for oversight of senior level departmental staff in

several divisions involved with implementing Miami-Dade Countys environmental protection

ordinance and for providing policy level guidance and decision making on requirements of the

County Code.

8. Pursuant to Miami Dade County Code Chapter 24-7 the Director of DERM has

the sole authority to determine whether the provisions of the Miami-Dade County Environmental

Protection Ordinance, Chapter 24 of the Miami Dade County Code, are being followed, the sole

discretion to initiate proceedings against anyone suspected of violating the provisions of Chapter


24 of the Miami Dade County Code, and sole discretion to terminate an investigation or an

action commenced under the provisions of Chapter 24 of the Miami Dade County Code.

9. Defendant Jack Osterholt (hereinafter Osterholt) is an individual maintaining

employment with Miami Dade County. Osterholt has been Deputy Mayor to Miami Dade

County Mayor Carlos Gimenez since August 1, 2011 and the Director of the Department of

Regulatory and Economic Resources (RER) since May 25, 2012.

10. In May of 2012 DERM was consolidated with the Miami Dade County divisions

of Construction, Permitting and Building Code, Development Services, Business Affairs,

Planning, and Environmental Resources Management to form the Department of Regulatory and

Economic Resources (RER). This consolidation was approved by the Miami Dade County

Board of Commissioners.

11. Osterholt was delegated responsibility for environmental permitting and

regulation in his employment as Deputy Mayor by Miami Dade County Mayor Carlos Gimenez.

Osterholt was delegated responsibility and accountability for all of the service elements involved

in permitting and land development in his appointment as the Director of the Department of

Regulatory and Economic Resources by Miami Dade County Mayor Carlos Gimenez.

12. Venue is proper in this Court under 28 U.S.C. 1391(b) because the Defendants

reside and may be found within the Southern District of Florida.

Facts

The Walbergs

13. From 1955-2000 the subject property was owned by Nathan and Bernice Walberg

(hereinafter Walbergs).


14. In 1994 the Walbergs filed for a Class I permit with DERM in order to re-

establish the historically maintained height and configuration of mangroves present on the

subject property following the devastation which had occurred from Hurricane Andrew.

15. In 1996 Florida Statutes 403.9321-403.9333, MTPA was enacted and

implemented.

16. In light of newly enacted legislation governing the trimming of mangroves, the

MTPA, the Walbergs withdrew their Class I permit application and trimmed mangroves on their

property pursuant to the exemption criteria provided by the MTPA.

17. None of the trimming conducted by the Walbergs was performed by a

Professional Mangrove Trimmer (hereinafter PMT) and no 10-day notice was given prior to

trimming, despite both being required by the MTPA.

18. On April 3, 1996, after learning of the trimming performed by the Walbergs,

DERM conducted an on-site inspection of the subject property and documented that red, white

and black mangroves had been trimmed in violation of the MTPA by trimming mangroves below

6 in height, altering mangroves, trimming mangroves greater than 10 in height without the

supervision of a PMT, failure to provide 10-day notice of the trimming to DERM and trimming

in excess of the 65% aggregate limit of coastal mangroves present on the subject property.

19. DERM staff estimated that although mangrove trimming and alteration violations

had occurred, less than 5% of the total mangroves on the property were trimmed in violation of

the MTPA. No enforcement action was taken.

20. DERM issued the Walbergs a warning letter regarding the violation and

instructing the Walbergs not to trim in violation of the MTPA in the future. No additional

enforcement was taken against the Walbergs.


Clifford Kunde

21. The property located at 17401 Old Cutler Rd, neighboring the subject property to

the north, has been owned by Clifford Kunde or his family since 1960 (hereinafter Kunde).

22. A large riparian mangrove fringe exists along the coastline of the property located

at 17601 Old Cutler Rd. This mangrove fringe has been trimmed and maintained according to

the exemption provisions of the MTPA since its enactment in 1996.

23. The Kundes have trimmed and maintained the coastal riparian mangrove fringe

on his property at a height of 4 pursuant to the historical maintenance exemption criteria of the

MTPA.

24. On December 22, 2010, DERM employees John Ricisak (hereinafter Ricisak)

and Luis Fernandez (hereinafter Fernandez) inspected and photographed the property

immediately north of the subject property located at 17401 Old Cutler Rd.

25. Ricisak and Fernandez observed mangroves on the property located at 17401 Old

Cutler Rd which had been altered and cut below 4 in height in violation of the MTPA.

26. No enforcement action was ever commenced against the owner of the property

located at 17401 Old Cutler Rd.

Plaintiff

27. On July 31, 2000 Plaintiff purchased the subject property from the Walbergs.

28. In late 2001 Plaintiff hired a licensed PMT, James Robinson (hereinafter

Robinson), a former employee of DERM and well respected professional environmental

consultant, to trim coastal mangroves on the subject property.

29. Robinson applied for a Class I permit from DERM on Plaintiffs behalf to trim

coastal mangroves on the subject property.


30. In response to Robinsons permit application, DERMs Coastal Resource Section

Manager, Joanne Clingerman (hereinafter Clingerman) performed an inspection of the subject

property, measuring and inventorying all mangroves.

31. It quickly became apparent that DERM had no intention of issuing a Permit to

Plaintiff. DERM continually made redundant requests for clarification and additional

information. Robinson lamented in correspondence with DERM that such permitting practices

were ridiculous and presented a serious hinderance to his ability to make a living. Specifically,

Robinson cited numerous projects more impactful than those proposed on the subject property

that had been easily permitted by DERM.

32. In response to Robinsons correspondence, Hefty1 informed Robinson that much

of the proposed mangrove trimming work would qualify as exempt trimming under the MTPA

and would not require a permit to complete.

33. Robinson subsequently issued a 10-day notification of his intent to trim

mangroves on the subject property pursuant to the exemption criteria of the MTPA. After

receiving no response from DERM, Robinson issued a second 10-day notification of his intent to

trim mangroves on the subject property, unnecessary according to the MTPA but done at the

direction of Plaintiff in an abundance of caution. No objections were made by DERM.

34. On the day of the trimming, Clingerman appeared at the subject property

unannounced and attempted to enter the subject property without a warrant. After Clingerman

was refused entry, she screamed over a fence that if Robinson did not cease trimming she would

pull his PMT license.

1 From 2001-2005 Hefty served as a manager of the Coastal Resources Section of DERM and was responsible for managing environmental monitoring programs. Hefty signed his correspondence with Robinson, however, as Chief of the Coastal Resources Section of DERM.


35. Robinson completed the trimming on the subject property and no enforcement

action was taken or initiated against either Robinson or Plaintiff.

36. In February 2002 Plaintiff submitted construction plans to begin the construction

permitting process to obtain a final building permit to construct a single family home on the

subject property.

37. With the exception of DERM2, all other agencies within Miami Dade County

processed, commented upon and eventually approved Plaintiffs plans within 5 months of initial

submission.

38. DERM, however, amassed over 150 separate non-compliance issues during

Plaintiffs construction plan review at DERM, each which would have to be addressed before

issuing inspection approvals. DERM serialized the review process between its own internal

departments to try to prevent Defendant from receiving a final approved building permit for the

subject property within the necessary time frame after which the permit application would expire

and all plans would have to be redone in accordance with the then new Florida Building Codes,

at great expense to Plaintiff. Among some of the more outrageous issues compiled by DERM

are as follows:

a. A requirement to install 5 commercial storm drains, despite no plans for there

being any asphalt or other non-percolating ground cover on the property; all

construction plans called for 100% percolating pavers and grass or trees on the

subject property. Such a request was unprecedented for residential

construction in Miami Dade County.

2 Upon receiving Plaintiffs construction plans on February 19, 2002, DERMs initial estimate to complete approval was 8 days, however final approval would not be granted until February 18, 2003.


b. A requirement for an architect to perform a hypothetical wave action analysis

on the pool which was to be constructed partially underneath the single family

home to determine if it could be ejected from its foundation and land on a

neighboring property or structure. According to Plaintiffs architects, such

hypothetical analysis would be nearly impossible to perform and they had

never heard of such a request before.

c. A requirement that columns within the pool structure be able to move

independently from the house structure, which would require that the columns

not reach the bottom of the pool. DERM was aware that such a requirement

would create a conflict with life/safety requirements in that such a proposal

would create non-permittable drowning risks and would force Dade County

agencies responsible for life/safety requirements to fail an inspection on the

pool and deny Plaintiffs Certificate of Occupancy.

39. DERM plan processing remarks from March 9, 2002 stated that there were no

wetlands on the subject property and all trees were clear.

40. In 2002 Plaintiff hired Steve Carney (hereinafter Carney), of Carney

Environmental Consulting, Inc., to perform a site assessment to limit any potential

environmental impacts of the proposed construction. Carney performed a jurisdictional wetland

analysis which concluded that no jurisdictional wetlands existed on the property landward of the

present coastal boundaries with Biscayne Bay of the subject property.

41. In January 2003 Plaintiff was told by an Environmental Quality Control Board

(EQCB) member during an EQCB hearing to rule on his request for a variance for water hook-up

at the subject property, that the subject property was coveted for use as a public park.


42. Although Plaintiffs variance was granted for the subject property, DERM would

continue to constantly monitor and attempt to enter the subject property from land, sea and air

once construction of a single family residence began in 2003.

43. After nearly a year without any progress addressing the seemingly endless

additional requests for corrections, studies, additional information and to review Plaintiffs

construction plans by DERM, Plaintiff confronted the Director of DERM, John Renfrow

(hereinafter Renfrow) and hand delivered to him a letter on Thursday February 13, 2003 that

explained the myriad of issues continually being raised by DERM, the bad intentions on the part

of DERM employees (specifically Clingerman), and the extreme delays in their permitting

approval process. Renfrow agreed with the letter and dispatched two DERM employees, Susan

Markley and Lee Hefty, to inspect the subject property for final plan approval. If a final building

permit was not approved by Thursday February 18, 2003 Plaintiff would be forced to start the

permitting process all over again, costing him tens of thousands of dollars and further delaying

construction on the subject property. DERM approval was the only requirement outstanding for

a building permit to be approved and issued.

44. On February 17, 2003 (Presidents Day) an inspection of the subject property was

scheduled between Plaintiff and the two employees from DERM3. On February 18, 2003 at

3:56pm, 364 days 23 hours and 56 minutes after Plaintiff initially began the permitting process

and four minutes before the application for the final building permit would have expired,

Plaintiffs construction plans were approved.

45. In response to an inquiry from DERM employee John Ricisak (hereinafter

Ricisak) on March 2, 2004 regarding potential wetland violations on the subject property,

3 Hefty and Susan Markley


Hefty determined that none of the construction on the subject property had impacted any

wetlands.

46. On March 8, 2004 both Hefty and Susan Markley determined that no activities

conducted on the subject property constituted a violation of environmental regulations under the

jurisdiction of DERM. No wetlands had been illegally filled and no mangroves had been

illegally trimmed.

47. In October 2005 Hurricane Wilma severely impacted the subject property and

knocked down a number of coastal mangrove trees.

48. In April 2007 Plaintiff became a certified arborist by the International Society of

Arboriculture (ISA). According to Fla. Stat. 403.9329 certified arborists, certified by the

International Society of Arboriculture are considered professional mangrove trimmers.

49. On June 21, 2009 Ricisak, while off-duty, observed mangrove trimming had

occurred along coastal areas of the subject property eligible for trimming under the exemption

criteria of the MTPA and previously trimmed by Robinson in 2002.

50. On December 27, 2009 Ricisak, while off-duty, observed mangrove trimming had



51. On May 29, 2010 Ricisak, while off-duty, observed mangrove trimming had



52. On December 13, 2010 Ricisak posted a cease and desist letter on the subject

property, demanding Plaintiff cease and desist all non-exempt mangrove trimming and provide a


response as to what trimming, if any, Plaintiff believed to be exempt from permitting

requirements.

53. On December 22, 2010 DERM employees Ricisak and Luis Fernandez

(hereinafter Fernandez) attempted to inspect the subject property, but were denied access to the

subject property from the gated entrance and proceeded to inspect the subject property from

Biscayne Bay via canoe.

54. During their inspection from Biscayne Bay Ricisak and Fernandez encountered

Plaintiff trimming mangroves eligible for exempt trimming under the MTPA along the coastline

of the subject property. In subsequent testimony and correspondence both Ricisak and other

DERM employees have admitted this area is eligible for exempt trimming by a homeowner.

a. Plaintiff instructed Ricisak and Fernandez that he had received the prior cease

and desist letter, but that it was factually incorrect and DERM would receive

his response in a written letter shortly.

b. Plaintiff also instructed Ricisak and Fernandez that he was the owner of

submerged lands on the property and that they were trespassing and told them

to leave his property.

55. On December 23, 2010 Ricisak provided an altered copy of Plaintiffs recorded

deed for the subject property to the Florida Department of Environmental Protection (DEP)

division of mapping and planning to receive a submerged lands ownership determination for the

subject property.

a. On February 9, 2011 DEP, relying upon the altered information provided by

RICISAK, made a determination that no private submerged lands existed

on the subject property.


b. On November 21, 2014 Plaintiff provided DEP with an unaltered copy of the

recorded deed for the subject property and historical documentation of the

subject property for a sovereign submerged lands determination.

c. On December 8, 2014 DEP determined that private submerged lands do

exist on the subject property.

56. On December 30, 2010 Plaintiff responded to DERM and Ricisak that any work

performed on the subject property did not require a Class I Permit, documenting harassment both

current and prior by DERM, and informing Ricisak that his property included submerged lands

upon which he was not to trespass.

57. On January 21, 2011, Plaintiff was issued Uniform Civil Violation Notice

(UCVN) B104439 for the trimming/alteration of mangroves on the subject property in violation

of Miami Dade County Code Chap. 24-25 for violations allegedly observed a month earlier.

UCVN B104439 specifically stated Plaintiff committed a violation of Miami Dade County Code

Chap.. 24-25 on December 22, 2010 at 10:00 a.m. (emphasis added). No further information

was provided as to the location, type or any other specifics of the violations referenced in UCVN

B104439. The UCVN did not contain any reference to any alleged wetland violations on the

subject property, although Ricisak documented what he believed to be wetland violations during

his December 22, 2010 inspection. It is not in dispute that Plaintiff was eligible to trim the

mangroves Ricisak observed Plaintiff trimming that morning under exemption criteria of the

MTPA, although specifically cited in the UCVN.

58. On March 2, 2011, without consulting legal counsel and believing the citation to

have been issued in error, Plaintiff paid UCVN B104439 out of convenience.


a. 20 days after paying UCVN B104439 Plaintiff was provided with a

continuing violation notice, for an alleged failure to correct the violations

Defendant had admitted to through payment of UCVN B104439.

b. According to this continuing violation notice, Plaintiff was now being

assessed a penalty 20x greater than the initial civil penalty of $250.00, or

$5,000.00.

59. In March 2011 Plaintiff spoke publicly at a town hall meeting in which he has

highly critical of DERM, calling them the most predatory agency in all of Miami-Dade County,

the second largest taxing authority within Miami-Dade County, and an abusive agency, among

other negative characterizations.

60. In April 2011 Plaintiff authored a letter to the editor of the Palmetto Bay

newspaper in which he chastised DERM as being predatory, characterizing their behavior as

destructive to individuals in the community, and accusing DERM of unfair dealings with his

neighbor, among other negative characterizations.

61. On May 5, 2011 the Director of DERM, Carlos Espinosa, replied to Plaintiffs

editorial in the Palmetto Bay newspaper defending DERM against the prior criticisms published

by Plaintiff assuring the Public that DERM is fair, reasonable and consistent in the application of

rules and regulations. Mr. Espinosa further asked citizens who feel that they are not being

treated fairly to contact the Director of DERM directly.

62. On May 17, 2011 Mr. Espinosa retired from his employment as the Director of

DERM.

63. On May 31, 2011 a meeting was held between Plaintiff, Hefty, DERM employee

Matt Davis and DERM employee Lisa Spadafina discussing the enforcement actions initiated


against Plaintiff by DERM. Plaintiff informed Hefty, Matt Davis and Lisa Spadafina that he had

paid the UCVN out of convenience and that the trees alleged to be trimmed in violation were

damaged by Hurricanes and Tornadoes in 2005.

64. On August 2, 2011, following continued denials by Plaintiff as to the existence of

violations on the subject property, DERM issued a Notice of Violation (NOV) alleging

mangroves had been trimmed, altered or removed in violation of Miami Dade County Code

Chap. 24 AND wetlands had been filled in violation of Miami Dade County Code Chap. 244.

65. On January 3, 2012 Plaintiff again wrote to DERM (by and through DERM

employee Barbara Brown) criticizing the conduct of the agency as being targeted for his

criticism of DERM at an earlier Town hall workshop in 2011.

66. On March 1, 2012 a meeting was held between Hefty, Osterholt, Assistant County

Attorney Tom Robertson (hereinafter ACA Robertson), and Eddie Borrego, Chief of Staff to

then County Commissioner Lynda Bell, discussing the enforcement actions taken against

Plaintiff by DERM.

67. On July 5, 2012 DERM Issued a Final Notice Prior to Court Action in which

Plaintiff was accused of both mangrove trimming and wetland filling violations. Plaintiff

responded to this notice on July 23, 2012 denying that any violations existed on his property,

requested a return of the $260.00 plaintiff unwittingly and without legal advice paid for UCVN

B104439, and requesting an appeal before the EQCB.

68. On August 2, 2012 Defendant requested a continuance from a continuing

violation hearing scheduled for August 16, 2012, requesting that DERM provide further details

regarding exactly what violation he is being accused of.

44 This was the first time Plaintiff had been formally accused of wetland violations on the subject property.


69. A continuation was granted, but no additional information as to the alleged

violations and penalties was provided.

70. On September 4, 2012, Defendant again requested specific information from

DERM regarding exactly what, other than generic Chap. 24 violations he had been accused of.

No response detailing the alleged violations was provided.

71. On September 6, 2012 Defendant, via mail, again requested a continuation of the

continuing violation hearing now scheduled for September 20, 2012.

72. This second continuation request was allegedly never received prior to the hearing

scheduled for September 20, 2012. However, Plaintiffs second continuation would re-appear in

the Clerks files with a receipt date stamped on the letter of October 3, 2012; the date-stamped

envelope of the continuation request was suspiciously and uniquely missing from the Clerks

files.

73. On September 19, 2012 Defendant filed the civil case styled Miami Dade County

vs. John DuBois Case no. 12-37082 against Plaintiff(hereinafter Enforcement Action). This

complaint was filed by ACA Robertson. This complaint was filed, despite the fact that Plaintiff

had not yet exhausted his administrative remedies to challenge the Director of DERMs decision

to issue a Final Notice of Violation Prior to Court Action.

74. On September 20, 2012, minutes before Plaintiff would attempt to defend himself

pro se at the administrative hearing, he was served with the enforcement action complaint.

75. During the administrative hearing, after testimony had begun, and in the midst of

Plaintiff attempting to defend himself, ACA Robertson appeared at the hearing (a highly unusual

event according to the hearing officer) and continuously interrupted the hearing, directing the

hearing officer that there could be no consideration as to issues of whether any violation had


occurred, because Plaintiff had paid UCVN B104439 and any issues with regard to mangrove

trimming were res judicata. The administrative hearing officer upheld the continuing violation.

76. On November 7, 2012 Defendant requested an appeal of the Final Notice Prior to

Court Action before the Environmental Quality Control Board (EQCB). Heftys decision to

initiate civil proceedings was not appealable, as a civil complaint had already been filed.

77. On January 10, 2013 Plaintiff provided 10-day notice to conduct mangrove

trimming on the subject property in accordance with the exemption provision of the MTPA.

DERMs response to Plaintiffs request was Hell No! DERM also asserted that any trimming

performed by Plaintiff, even areas known to be exempt from any permitting requirements under

the MPTA, would be considered a violation.

78. On March 2, 2013 Plaintiff submitted a Professional Mangrove Trimmer

Renewal/Application form along with $500.00 and proof of his certification as an ISA certified

arborist to DERM.

79. On March 7, 2013 Plaintiff observed a helicopter hovering over his house for an

extended period of time and boat with DERM insignia approach his property in rapid succession

at a high rate of speed. Plaintiff filed a Suspicious Incident report with the Palmetto Bay Police

Department regarding these observations.

80. On March 13, 2013 an inspection of the subject property was performed by

Ricisak and several other DERM employees, even though Ricisak did not believe that the

inspection was necessary.

81. On March 14, 2013 Plaintiff filed a civil suit against Ricisak, individually, styled

John DuBois v. John Ricisak et. al. Case No. 13-9424 in the 11th Judicial Circuit Court of

Miami-Dade County.


82. On March 15, 2013 Plaintiff issued a 10-day notice to trim mangroves under the

exemption provision of the MTPA so that DERM could dispatch any employees deemed

necessary to monitor the proposed trimming.

83. On March 25, 2013 an unknown person or persons severely damaged and clean

cut a number of branches of mangroves growing along the coast of the subject property out of

view of the single family residence at approximately 3:00 a.m. Plaintiff filed a police report

regarding this incident.

84. On Monday April 8, 2013 Plaintiff and DERM engaged in attempted mediation to

resolve these matter without need for further enforcement actions. Plaintiff and DERM were

close to an agreement with a need merely to formalize and define the final details.

85. On Tuesday April 9, 2013 Plaintiffs Counsel John Lukacs requested a

continuance of the EQCB hearing scheduled for April 11, 2013, because a settlement was nearly

complete and Plaintiff would be out of the state for business for the rest of the week beginning

that evening.

86. The morning of April 10, 2013 ACA Robertson informed John Lukacs that the

County Attorneys office was agreeable to a continuance, DERM management was agreeable to

a continuance, but DERM staff were not and therefore, the EQCB hearing would continue as

scheduled. Plaintiff was forced to fly back on a red-eye flight for the hearing scheduled for April

11, 2013.

87. The evening of April 10, 2013 Ricisak was personally served with notice of the

aforementioned civil suit filed on March 14, 2013.


88. On April 11, 2013 at the scheduled EQCB hearing Defendant produced a pre-

hearing memorandum5 dwarfing any previously produced and containing exhibits and new

allegations never before shown to Plaintiff or Plaintiffs Counsel. These newly included exhibits

and allegations were provided to Plaintiff and Plaintiffs counsel five minutes prior to the

scheduled hearing. The EQCB hearing scheduled for April 11, 2013 was consequently

continued to May 9, 2013.

89. On May 13, 2013 DERM rejected Plaintiffs PMT application6.

90. On May 9, 2013 and June 3, 2013 the Environmental Quality Control Board

(EQCB) heard Plaintiffs appeal of the Final Notice of Violation prior to court action. By a 3-2

margin the EQCB Board members voted to uphold the issuance of the Final Notice. However,

the degree and extent of any alleged violations were specifically not determined by the EQCB.

The two EQCB judges who voted in favor of Plaintiff found no evidence to support the findings

of any violations on the subject property. Hefty served as the Secretary of the EQCB throughout

the proceedings.

91. On July 12, 2013 the EQCB issued a final order denying Plaintiffs appeal. The

contents of this order was drafted by DERM staff and acknowledged by Hefty as Secretary and

Clerk of the EQCB.

92. On March 15, 2014 a preliminary injunctive order was issued by the 11th Judicial

Circuit of Miami-Dade County requiring Plaintiff to perform an environmental assessment of the

5 A pre-hearing memorandum is produced by DERM staff prior to any appeal providing DERMs assessment of why the appeal should be denied to the EQCB boardmembers. Appellants are not afforded the same opportunity to provide a report as to why the appeal should be upheld. These pre-hearing memorandum are typically made available to the public well before the scheduled EQCB hearing date. 6 A denial of an applicants application to become a registered Professional Mangrove Trimmer is considered a final decision by the Director of DERM.


subject property and determine the degree and extent of violations on the subject property as well

as prepare a mitigation plan for any violations.

93. On April 6, 2014 a Miami Herald Article was written about the civil case filed

against Plaintiff by Miami Dade County in which ACA Robertson commented on the penalties

faced by Plaintiff, The purpose of having a penalty provision like that is frankly to coerce

people to comply. And so if a person complies you dont want to penalize them. If a person

fights you the more you, the more you want the penalties so that other people looking at it will

say, oh, I really shouldnt fight them. ACA Robertson also stated that Plaintiff was facing

potentially millions of dollars in fines.

94. In April 2014 Plaintiff twice sent correspondence to Miami-Dade County

Commissioners Bruno Barreiro, Lynda Bell, Esteban Bovo, Jose Pepe Diaz, Audrey

Edmonson, Sally Heyman, Barbara Jordan, Jean Monestime, Dennis Moss, Rebecca Sosa,

Xavier Suarez, Javier Soto, and Juan Zapata; Miami Dade County Mayor Carlos Gimenez;

Miami Dade County Deputy Mayors Jack Osterholt, Russell Benford, Genero Chip Iglesias,

and Ed Marquez; and Miami Dade County Attorney R.A. Cuevas. The content of Plaintiffs

correspondence addressed the improper motivations and tactics pursued by DERM against

Plaintiff in their environmental enforcement actions initiated against him.

95. On June 17, 2014 Plaintiffs agent made a citizens presentation7 to the assembled

Miami Dade County Commission regarding the improper motivations and tactics pursued by

DERM against Plaintiff in their environmental enforcement actions initiated against him.

96. On September 2, 2014, an order granting Miami Dade County a preliminary

injunction was amended, because it erroneously required Plaintiff to perform an environmental

7 Plaintiffs agents citizens presentation was sponsored and put on the agenda by Miami Dade County Commissioner Rebecca Sosa, Chairwoman of the Miami Dade County Commission.


assessment using a jurisdictional wetland delineation line DERM knew to be incorrect. DERM

admitted NO appropriate wetland delineation had been performed and it would need to be

determined as part of the preliminary injunctive order. Without a formal wetland delineation it is

impossible to determine the extent, if any, of wetlands were alleged to have been filled illegally

on the subject property.

97. On November 17, 2014 a comprehensive environmental assessment was

performed by an experienced environmental consultant on the subject property to assess the

degree and extent of violations existing on the property. The environmental assessment

concluded there could be no wetland violations on the property and that less than 5% of any

mangroves on the subject property had been trimmed, altered or removed in violation of the

MTPA. All of these violations were limited to a non-coastal area along the subject propertys

southern boundary line (coastal mangroves are much more environmentally sensitive than non-

coastal mangrove fringes). The report further concluded, that no remediation would be required

for any violations, as the subject property had enjoyed a significant ecological gain and a large

percentage increase in coastal mangrove population as the result of Plaintiffs care of the subject

property.

98. On November 24, 2014 Miami Dade County filed an Amended Complaint again

accusing Plaintiff of Miami Dade County Code Chap. 24 and MTPA violations for illegally

filling wetlands and cutting mangroves and causing irreparable harm to the environment.

COUNT I CLASS OF ONE DISCRIMINATION AS TO MIAMI DADE COUNTY

99. Plaintiff re-alleges and incorporates by reference the allegations set forth in

paragraphs 1-98, as if set forth herein.


100. The final policymakers for Miami Dade County, pursuant to official policy, have

intentionally singled out and discriminated against Plaintiff by aggressively pursuing Plaintiff for

what always have been de minimus and have now been shown to be moot environmental

violations, when identical or more impactful violations previously documented on the subject

property, although under different ownership, resulted in no enforcement action from Defendant.

101. Miami Dade Countys discrimination of Plaintiff compared to others similarly

situated is not rationally related to any legitimate government purpose, and is without

justification, cause or excuse.

102. Miami Dade Countys actions towards Plaintiff were taken under color of state

law and in violation of the Equal Protection Clause of the 14th Amendment of the United States

Constitution, for which the Defendant is liable to Plaintiff under 42 U.S.C. 1983.

103. Alternatively, Miami Dade County exhibited totally illegitimate animus toward

Plaintiff and/or illegitimate reasons of a personal nature unrelated to the duties of the

Defendants Department.

104. Miami Dade County has intentionally singled out and discriminated against

Plaintiff by denying his application to register as a Professional Mangrove Trimmer. Defendant

is the only ISA certified Arborist whose PMT registration application has been denied by

DERM.

105. The unlawful, arbitrary, capricious and disparate treatment was due to ill will and

malicious intent of Miami Dade County.

106. Plaintiff has suffered damage and harm as a direct and proximate result of

Defendants actions.


WHEREFORE, Plaintiff prays this court to enter a judgment for an award of damages in

favor of Plaintiff against Defendant plus reasonable attorneys fees and costs pursuant to 42

U.S.C. 1988, and any other relief this court deems just and proper.

COUNT II SELECTIVE ENFORCEMENT AS TO MIAMI DADE COUNTY



108. Miami Dade County unequally applied Fla. Stat 403.9326- 403.9334 (MTPA)

for the purpose of discriminating against Plaintiff.

109. Miami Dade County treated Plaintiff differently from others similarly situated

through the enforcement actions initiated against Plaintiff. Miami Dade County documented

mangroves which had been trimmed in violation of the MTPA on the Kunde property on the

same date identical alleged violations were observed on the subject property. No enforcement

action was initiated against the Kundes, while identical observations on Plaintiffs property have

resulted in numerous enforcement proceedings and protracted litigation.




COUNT III FIRST AMENDMENT RETALIATION AS TO MIAMI DADE COUNTY



111. Plaintiffs public commentary and criticism of DERM, as described herein, is

protected by the First Amendment to the United States Constitution and the retaliatory action of

continued aggressive enforcement, threats of unreasonably high violation penalties, and a


campaign of harassment by Miami Dade County violated such rights in violation of 42 U.S.C.

1983.

112. Plaintiffs public commentary and criticism of DERM were made to expose and

correct official misconduct and inefficiencies in Plaintiffs capacity as a concerned citizen and

not for any personal benefit. Plaintiffs complaints were a matter of public concern and made

through a forum devoted to such complaints.

113. Plaintiffs public commentary and criticism of DERM played a substantial

motivating part of Miami Dade Countys unconstitutional retaliatory actions.

COUNT IV CLASS OF ONE DISCRIMINATION AS TO LEE HEFTY



115. Lee Hefty intentionally singled out and discriminated against Plaintiff by ratifying

the aggressive pursuit of Plaintiff for what always have been de minimus and have now been

shown to be moot environmental violations, when identical or more impactful violations

previously documented on the subject property, although under different ownership, resulted in

no enforcement action from Defendant.

116. Lee Heftys discrimination of Plaintiff compared to others similarly situated is not

rationally related to any legitimate government purpose, and is without justification, cause or

excuse.

117. Lee Heftys actions towards Plaintiff were taken under color of state law and in

violation of the Equal Protection Clause of the 14th Amendment of the United States

Constitution, for which Lee Hefty is liable to Plaintiff under 42 U.S.C. 1983.


118. Alternatively, Lee Hefty exhibited totally illegitimate animus toward Plaintiff

and/or illegitimate reasons of a personal nature unrelated to the duties of Lee Heftys

employment with DERM.

119. Lee Hefty has intentionally singled out and discriminated against Plaintiff by

denying his application to register as a Professional Mangrove Trimmer. Defendant is the only

ISA certified Arborist whose PMT registration application has been denied by DERM.

120. The unlawful, arbitrary, capricious and disparate treatment was due to ill will and

malicious intent of Lee Hefty.


Defendants actions.




COUNT V SELECTIVE ENFORCEMENT AS TO LEE HEFTY



123. Lee Hefty unequally applied Fla. Stat 403.9326- 403.9334 (MTPA) for the

purpose of discriminating against Plaintiff.

124. Lee Hefty treated Plaintiff differently from others similarly situated through the

enforcement actions initiated against Plaintiff. DERM staff documented mangroves which had

been trimmed in violation of the MTPA on the Kunde property on the same date identical alleged

violations were observed on the subject property. No enforcement action was initiated against the


Kundes, while identical observations on Plaintiffs property have resulted in numerous

enforcement proceedings and protracted litigation.




COUNT VI FIRST AMENDMENT RETALIATION AS TO LEE HEFTY






campaign of harassment by DERM violated such rights in violation of 42 U.S.C. 1983.






motivating part of DERMs unconstitutional retaliatory actions.

COUNT VII CLASS OF ONE DISCRIMINATION AS TO JACK OSTERHOLT



130. Jack Osterholt has intentionally singled out and discriminated against Plaintiff by

ratifying the aggressive pursuit Plaintiff for what always have been de minimus and have now


been shown to be moot environmental violations, when identical or more impactful violations

previously documented on the subject property, although under different ownership, resulted in

no enforcement action from DERM.

131. Jack Osterholts discrimination of Plaintiff compared to others similarly situated

is not rationally related to any legitimate government purpose, and is without justification, cause

or excuse.

132. Jack Osterholts actions towards Plaintiff were taken under color of state law and

in violation of the Equal Protection Clause of the 14th Amendment of the United States

Constitution, for which the Defendant is liable to Plaintiff under 42 U.S.C. 1983.


Defendants actions.




COUNT VIII SELECTIVE ENFORCEMENT AS TO JACK OSTERHOLT



135. Jack Osterholt unequally applied Fla. Stat 403.9326- 403.9334 (MTPA) for the

purpose of discriminating against Plaintiff.

136. Jack Osterholt treated Plaintiff differently from others similarly situated through

the enforcement actions initiated by DERM against Plaintiff. DERM employees documented

mangroves which had been trimmed in violation of the MTPA on the Kunde property on the

same date identical alleged violations were observed on the subject property. No enforcement


action was initiated against the Kundes, while identical observations on Plaintiffs property have

resulted in numerous enforcement proceedings and protracted litigation.




COUNT IX FIRST AMENDMENT RETALIATION AS TO JACK OSTERHOLT






campaign of harassment by DERM violated such rights in violation of 42 U.S.C. 1983.






motivating part of Jack Osterholts unconstitutional retaliatory actions.




A jury trial is demanded Respectfully submitted March 30, 2015,


Jeffrey P. Leary 18495 South Dixie Highway PMB 107

Cutler Bay, FL 33157 [email protected]

305-938-1150

________/S/__________________ Jeffrey P. Leary, Esq. (FBN 98653)
