Filing # 128590463 E-Filed 06/11/2021 01:33:02 PM

IN THE DISTRICT COURT OF

APPEAL OF FLORIDA, THIRD
DISTRICT

CASE NO. 3D21-701 & 3D21-761

TRIAL COURT
RECEIVED, 06/11/2021 01:33:31 PM, Clerk, Third District Court of Appeal

CASE NO. 2021-5408-CA

CITY OF MIAMI,

Appellant/Petitioner,
v.

MIAMI-DADE COUNTY,

Appellee/Respondent.
______________________________/

ANSWER BRIEF OF APPELLEE

GERALDINE BONZON-KEENAN
Miami-Dade County Attorney
Stephen P. Clark Center
111 N.W. 1st Street, Suite 2810
Miami, Florida 33128

By: Annery Pulgar Alfonso

Bruce Libhaber
Debra Herman
Dale P. Clarke
Assistant County Attorneys
Telephone: (305) 375-5151
Fax: (305) 375-5611
Email:
Annery.Alfonso@miamidade.gov
Bruce.Libhaber@miamidade.gov
DHerman@miamidade.gov
Dale.Clarke@miamidade.gov
 TABLE OF CONTENTS
Page

TABLE OF CONTENTS ............................................................ i

TABLE OF CITATIONS ............................................................ ii

SUMMARY OF THE CASE AND OF THE FACTS...................... 1

SUMMARY OF ARGUMENT .................................................... 7

STANDARD OF REVIEW ....................................................... 10

ARGUMENT ......................................................................... 10

I. THE TRIAL COURT DID NOT ERR IN DENYING THE

CITY’S MOTION TO ABATE PURSUANT TO SECTION
164.1041(2), FLORIDA STATUTES ........................ 13

II. THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION IN GRANTING THE COUNTY’S MOTION
FOR INJUNCTION OF RELIEF ................................ 18

III. THE PETITION SHOULD BE DISMISSED AS MOOT

................................................................................ 28

CONCLUSION ...................................................................... 29

CERTIFICATE OF SERVICE.................................................. 31

CERTIFICATE OF COMPLIANCE .......................................... 32

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 TABLE OF CITATIONS
Page(s)

Cases

Blumberg v. USAA Cas. Ins. Co.,

790 So. 2d 1061 (Fla. 2001)....................................................... 17

City of Miami v. City of Miami Firefighters’ & Police Officers’ Ret. Tr.
& Plan,
249 So. 3d 709 (Fla. 3d DCA 2018)...................................... 15, 16

City of Miami v. Metropolitan Dade County,

407 So. 2d 243 (Fla. 3d DCA 1981)...................................... 22, 24

Cosmic Corp. v. Miami-Dade Cnty.,

706 So. 2d 347 (Fla. 3d DCA 1998)............................................ 18

Dade Cnty. v. Dunn,

693 So. 2d 1035 (Fla. 3d DCA 1997) .................................... 19, 20

Desroses v. State,
No. 3D20-1299, 2021 WL 608321 (Fla. 3d DCA February 17,
2021) ......................................................................................... 28

Fla. High Sch. Athletic Ass'n v. Rosenberg,

117 So. 3d 825 (Fla. 4th DCA 2013) .................................... 10, 14

Gainesville Woman Care, LLC v. State,

210 So. 3d 1243 (Fla. 2017)....................................................... 10

Godwin v. State,
593 So. 2d 211 (Fla. 1992)............................................... 9, 28, 29

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
 TABLE OF CITATIONS Cont'd
Page(s)
Cases

Keystone Creations, Inc. v. City of Delray Beach,

890 So. 2d 1119 (Fla. 4th DCA 2004) ........................................ 27

Metropolitan Dade County v. O’Brien,

660 So. 2d 364 (Fla. 3d DCA 1995)...................................... 19, 26

Miami-Dade Cnty. v. Fernandez,

905 So. 2d 213 (Fla. 3d DCA 2005).......................... 18, 19, 26, 27

Miami Shores v. Cowart,

108 So. 2d 468 (Fla. 1958) .................................................. 22, 23

P.M. Realty Invs. v. City of Tampa,

779 So. 2d 404 (Fla. 2d DCA 2000)............................................ 28

Pinecrest Lakes, Inc. v. Shidel,

795 So. 2d 191 (Fla. 4th DCA 2001) .......................................... 26

Polk County v. Mitchell,

931 So. 2d 922 (Fla. 2d DCA 2006)................................ 21, 26, 28

State Dept. of Environmental Regulation v. Kaszyk,

590 So. 2d 1010 (Fla. 3d DCA 1991) .......................................... 27

Statutes

Section 164.1041, Fla. Stat .......................................................... 13

Section 164.1041(2), Fla. Stat ............................................... passim

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
 TABLE OF CITATIONS Cont'd
Page(s)

Section 316.2045, Fla. Stat .......................................................... 24

Section 336.02, Fla. Stat. ............................................................. 22

Rules

Fla. R. App. P. 9.210 .................................................................... 32

Fla. R. App. 9.300 .......................................................................... 9

Ordinances

Miami-Dade County Code Section 2-95.1 ..................................... 24

Miami-Dade County Code Section 2-96.1 .......................... 23,24, 27

Miami-Dade County Codes 30-388.12 ......................................... 27

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
 STATEMENT OF THE CASE AND OF THE FACTS1

On March 2, 2021, the City of Miami (the “City”) placed

unauthorized concrete barriers at four intersections in the Silver

Bluff neighborhood in the City, the construction and deployment of

which presented an imminent threat to the life, health, and safety of

the traveling public. (App. 015-017). These unilateral street closings

were done without the required prior approvals from the Miami-Dade

Department of Transportation and Public Works (DTPW) for design,

safety, emergency access, and notice to the public. (App. 015-016 at

¶ 3). Accordingly, on March 3, 2021, County Mayor Daniella Levine

Cava informed City Mayor Francis Suarez that the barriers placed by

the City of Miami were not in compliance with Miami-Dade County

Code and must be removed immediately. (App. 028-031).

1 Record citations are generally to the Record on Appeal filed

by Appellee on March 26, 2021 in Case No. 3D21-761 and are
denoted as “App.___.”
Citations to the Complaint for Injunction [App. 4-41], are
denoted as “Compl. ¶ __” or “Compl. Ex. __ at ___.”
Citations to the Verified Emergency Motion for Preliminary
Injunction [App. 4-41], are denoted as “Motion for Injunction ¶ __” or
“Motion for Injunction Ex. __ at ___.”
The Code of Miami-Dade County, Florida, is cited as “County
Code § ___.”
All emphasis in citations to the record or legal authority is
supplied unless otherwise specified.
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
 The County continued to attempt to amicably reach a resolution

with the City of Miami over the next three days, but said efforts were

to no avail. Because the City of Miami refused to remove the barriers

which created an ongoing public safety hazard, and in accordance

with the authority granted by state law, the County Charter, and the

County Code, on March 5, 2021, DTPW dispatched a crew, escorted

by two police officers from the Miami-Dade Police Department, to

remove the unauthorized concrete barriers from the roadway. (App.

025 at ¶ 2). During the course of DTPW’s removal of the obstruction

at the first intersection, numerous police officers from the City of

Miami Police Department arrived at the scene and ordered the DTPW

employees to immediately stop their removal of the concrete barrier

obstruction. (App. 025 at ¶ 3). Upon learning of the incident, Director

Ramirez of the Miami-Dade Police Department called the City of

Miami Interim Police Chief, Ronald L. Papier, who informed Director

Ramirez that he had been instructed to ensure that the County did

not remove the concrete barrier obstructions from the referenced

streets. (App. 025 at ¶ 4). In order to prevent a public confrontation

between a municipal police force and the County’s police force,

Director Ramirez determined that it was necessary to stop such

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
removal at that point in order to de-escalate the situation and to

prevent any further incident. (App. 025 at ¶ 5).

Left with no alternative during this emergency, on March 6,

2021, the County filed a Complaint for Injunctive Relief, Lower

Tribunal Case 2021-5408 CA 01, and Verified Emergency Motion for

Preliminary Injunction and Incorporated Memorandum of Law, which

was heard by the trial court on March 7, 2021. (App. 004-095, 099-

284). At the outset of the hearing, the City moved to abate the

proceedings pending exhaustion of the provisions of Chapter 164 of

the Florida Statutes. (App. 099-284). However, after reviewing the

County’s Motion for Injunction and hearing argument of counsel, the

emergency trial judge: (i) denied the City’s Motion to Abate, finding

an “immediacy of the danger to life, health, and safety” set forth in

the County’s emergency motion; and (ii) entered an Order on the

County’s Motion for Injunction, which incorporated provisions that

were agreed to by the City in open court. (App. 099-288).

In short, to temporarily preserve the status quo and in response

to the City’s offer during the March 7th emergency hearing to resolve

the dispute at issue, the emergency trial judge allowed the City to

replace the concrete barriers with Type III barricades on a temporary

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
or interim basis pending further court order in accordance with the

County Engineer’s testimony as to the appropriate manner to detour

traffic, provided that such installation was consistent with the

County’s comments to the City’s permit application. (App. 286-288).

The emergency trial judge limited his ruling to the City’s creation of

“Dangers in the Roadway” and reserved the remaining issues in the

case to be decided by the judge who would be assigned to the case,

and specifically including whether the City was required to obtain a

permit prior to the installation of the road barriers. (App. 286-288).

While the City dispatched a crew and removed the concrete

barriers and simultaneously replaced them with Type III barriers. The

Type III barriers were not installed in compliance with the applicable

laws, requirements, and regulations, and continue to present serious

life safety issues for the traveling public. (Suppl. App. to Ans. Br. 021-

028).

In lieu of working with the County to rectify the unsafe road

conditions it created, the City has instead elected to litigate an order

on grounds that have now become moot, as well as to litigate an order

that it agreed to in open court. Specifically, on March 10, 2021, the

City filed the Petition for a Writ of Prohibition or Mandamus (the

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
“Petition). See Case No. 3D21-701. The Petition asks this Court to

order the trial court to abate the underlying action until the

provisions of Chapter 164 of Florida Statutes are exhausted. Petition,

pp. 7, 18-19, Case No. 3D21-701.

On March 16, 2021, at the first meeting of the Board of County

Commissioners (the “Board”) that followed the City’s removal of the

dangerous concrete barriers and installation of the Type III barriers,

the Board, by a three-fourths vote of commissioners now in office,

adopted County Resolution No. R-196-21, which, in accordance with

section 164.1041(2), Fla. Stat., dispensed with the conflict resolution

procedures required by Chapter 164 of the Florida Statutes. The

Board found that: (i) an immediate danger to the health, safety or

welfare of the public requires immediate action; and (ii) the County’s

significant legal rights will be compromised if the underlying action

is abated and proceedings do not proceed before the City and the

County may comply with the provisions of Chapter 164 of the Florida

Statutes. (Suppl. App. to Ans. Br. 021-028). See also § 164.1041(2),

Fla. Stat. (2021) (providing that if a governmental entity, by a three-

fourths vote of its governing body, finds an immediate danger to the

health, safety, or welfare of the public requires immediate action, or

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
that significant legal rights will be compromised if a court proceeding

does not take place before the dispute resolution processes are

concluded, then the conflict resolution procedures required by

Chapter 164 shall not be required before the dispute may be heard

in court).

The County notified the City of the Board’s adoption of

Resolution No. R-196-21, which dispensed with the conflict

resolution procedures required by Chapter 164 and mooted the issue

raised in the City’s Petition. Despite the Board’s statutory exhaustion

of the Chapter 164 conflict resolution procedures, the City

nonetheless insists on this Court reviewing a now moot Petition.

Accordingly, the County filed a motion to dismiss the Petition as

moot. (Suppl. App. to Ans. Br. 029-046).

Shortly after the County notified the City that the Board had

adopted Resolution No. R-196-21, the City proceeded to file the

present action seeking interlocutory review of the trial court’s order

on the County’s emergency motion for injunctive relief—an order that

the City not only agreed to in open court, but indeed invited—on

grounds that the trial court lacked subject matter jurisdiction to

enter said order. The City also filed a motion to consolidate the
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
Petition and the present appeal. On March 23, 2021, this Court

ordered the City to respond to the County’s motion to dismiss and for

the County to respond to the City’s motion to consolidate within ten

days of the order. See Order March 23, 2021, Case No. 3D21-701.

The parties filed the respective responses, and on May 12, 2021, this

Court entered an order consolidating the above-referenced Petition

and appeal for all appellate purposes under Case No. 3D21-701 and

carried the County’s motion to dismiss the Petition with the case. The

County was ordered to file a consolidated initial brief by June 11,

2021.

SUMMARY OF ARGUMENT

In an effort to extend the status quo while maintaining unsafe

road obstructions in place, the City is appealing the very order which

it invited, agreed to, carried out, and continues to reap the equitable

relief it provided. In agreeing to the trial court’s order granting the

County’s Motion for Injunction, the City has waived any argument

challenging said order. Yet, the City argues on appeal that the trial

court erred in entering the preliminary injunction order because the

County failed to exhaust the conflict resolution procedures provided

for in Chapter 164, Florida Statutes, prior to filing suit against the
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
City. Section 164.1041(2) of the Florida Statutes, however,

contemplates that in an emergency a court has the discretion to issue

the relief requested here - an emergency temporary injunction to

rectify dangerous road conditions risking loss of life and property -

without the exhaustion of the Chapter 164 procedures. See §

164.1041(2), Fla. Stat. Any argument that the trial court must have

abated the suit against the City without first hearing and ruling on

the County’s Motion for Injunction is simply not supported by the

relevant statutory provisions. As such, this Court should affirm the

lower court’s preliminary injunction order.

Moreover, this Court should dismiss the City’s Petition as moot.

In its Petition, the City seeks a writ directing that the trial court abate

the proceedings below until the parties have complied with the

provisions of Chapter 164 of the Florida Statutes, the Florida

Governmental Conflict Resolution Act. Such a writ, however, is no

longer available as the County has fully complied with the Florida

Governmental Conflict Resolution Act by the adoption, by a three-

fourths vote of the Board of County Commissioners now in office, of

County Resolution No. R-196-21, which dispenses with the conflict

resolution procedures required by Chapter 164 of the Florida

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
Statutes. (Suppl. App. to Ans. Br. 021-028). As compliance with

Chapter 164 of the Florida Statutes is the only relief sought by the

City, no issue remains for judicial determination. Accordingly,

pursuant to Rule 9.300 of the Florida Rules of Appellate Procedure,

this Court should dismiss the Petition as moot. See Godwin v. State,

593 So. 2d 211, 212 (Fla. 1992) (“A moot case generally will be

dismissed.”).

Ultimately, the City’s initial brief does show that at this point

the County and the City do agree on one issue, both parties are

essentially asking to be back before the trial court so that the trial

judge can hear the case on the merits. The County’s Motion for

Injunction was focused on addressing the dangerous conditions

created by the City’s concrete barriers. The City has since removed

and replaced those with Type III barriers. Accordingly, the issues

addressed by the trial court preliminary injunction order have now

become moot. The questions that are ripe for consideration are the

merits of the claims raised in the County Complaint which remain at

issue in light of the dangerous ongoing conditions created by the City

in violation of the Florida Constitution, the Home Rule Amendment

and Charter for Miami-Dade County (the “County Charter”), Florida

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
law, the Code of Miami-Dade County, Florida (the “Code”), and well-

established caselaw.

STANDARD OF REVIEW

This Court applies a hybrid standard of review to the appeal of

an order granting or denying a temporary injunction: “To the extent

the trial court's order is based on factual findings, we will not reverse

unless the trial court abused its discretion; however, any legal

conclusions are subject to de novo review.” Gainesville Woman Care,

LLC v. State, 210 So. 3d 1243, 1258 (Fla. 2017) (quoting Fla. High

Sch. Athletic Ass'n v. Rosenberg, 117 So. 3d 825, 826 (Fla. 4th DCA

2013)).

ARGUMENT

After identifying the “long standing problem” of cut-through

traffic in the Silver Bluff area, on March 2, 2021, the City proceeded

with the unlawful installation of dangerous concrete barriers and

other dangerous obstructions across public streets at the

intersections of SW 22nd Street near SW 14th Avenue, SW 23rd

Street near SW 17th Ave, SW 22nd Street near SW 16th Avenue, and

SW 22nd Street near SW 16th Court (“the obstructed intersections”).

Taking traffic regulation into its own hands, and disregarding law
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
and safety, the City dangerously impeded, restrained, and rerouted

the flow of traffic. After the County Mayor directed the City to remove

the unlawful and unsafe concrete barriers, inviting the City to

collaborate with the County to evaluate and address the traffic

conditions in a reasonable and lawful manner, the City refused.

When the County took action to remove the dangerous obstructions,

the City shockingly dispatched its police force to prevent the County

from lawfully exercising its rights. Indeed, the City Mayor

nonetheless told the County to “get a court order.” (App. 043).

Accordingly, the County filed a Complaint for Injunctive Relief

and, in light of the possibility of serious bodily harm, an Emergency

Motion for Preliminary Injunction requesting that the court order the

City to immediately remove the concrete barriers from the obstructed

intersections. The trial court ordered the parties to appear for an

emergency hearing during which the court heard testimony and

arguments from both sides. At that hearing, the City moved to abate

the proceedings arguing that the County needed to exhaust the

Chapter 164 procedures before filing suit against the City. The trial

court denied the City’s motion to abate “due to the immediacy of the

danger to life, health and safety set forth in Miami-Dade County’s

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
Verified Emergency Motion for Preliminary Injunction.” (App. 285).

In part precipitated by the City’s own agreement in open court

to remove the concrete barriers and other dangerous obstructions,

and in order to satisfy the immediate life, health, and safety concerns

brought about by the City’s installation of said obstructions, the trial

court ordered the City to remove the concrete barriers and other

dangerous obstructions from the subject roadways by 5:00 pm on

March, 8, 2021. (App. 286-287).

Now, in what can only be characterized as an attempt to extend

the status quo to maintain the improper road closure, the City is

appealing the very order which it not only agreed to in open court,

but also invited and carried out by replacing the concrete barriers

with Type III barriers. The City has, for at least three months now,

enjoyed the benefits of that order, because it has been able to

maintain the Type III barriers in place under the authority granted

by said order. Thus, the City has waived any argument challenging

the injunction order which it invited, agreed to, and received the

equitable relief it provided.

Nonetheless, and surprisingly, the City’s argument on appeal is

that the trial court erred in entering the preliminary injunction order
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
because the County failed to exhaust the conflict resolution

procedures provided for in Chapter 164, Florida Statutes, prior to

filing suit against the City. The City ignores, however, the clear

language of section 164.1041 which contemplates that in an

emergency, a court has the discretion to issue the relief requested -

such as an emergency temporary injunction, without the exhaustion

of the Chapter 164 procedures. See § 164.1041(2), Fla. Stat.

I. THE TRIAL COURT DID NOT ERR IN DENYING THE

CITY’S MOTION TO ABATE PURSUANT TO SECTION
164.1041(2), FLORIDA STATUTES

The City correctly points out that section 164.1041(2) provides

that a governmental entity may by a three-fourths vote of its

governing body dispense with the procedures required by Chapter

164 if the governing body “finds that an immediate danger to health,

safety, or welfare of the public requires immediate action, or that

significant legal rights will be compromised if a court proceeding does

not take place before the provisions of this act are complied with.”

§ 164.1041(2), Fla. Stat. However, the statute goes on to provide that

“the court, upon motion, may review the justification for failure to

comply with the provisions of this act and make a determination as

to whether the provisions of this act should be complied with prior to

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
action by the court.” Id. The statute, thus, recognizes that under

certain emergency circumstances, a government entity may not be

able to comply with the provisions of Chapter 164 and thus, may seek

emergency relief from a court. That is precisely what the County did

in the present matter.

Yet, the City insists on a narrow reading of the statute which

not only chips away at the trial court’s jurisdiction, but also causes

prejudice to public welfare. The City’s reading of the statute would

require a government entity to either go through the extensive

Chapter 164 procedures or to wait, at a minimum, several days to

prepare a resolution and notice a special meeting (because in most

instances regular meetings are usually held once or twice a month)

of its governing body for said body to consider and vote on a

resolution dispensing with the Chapter 164 procedures. In the

meantime, the dangerous condition to health, safety, or welfare of the

public remains unaddressed. Indeed, the City’s reading seems to

assume that emergencies do not arise during a weekend, during

which a special meeting of a government entity is almost entirely

unlikely to occur, but during which—as occurred in this matter—

there are emergency judges available to address such situations.

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
Clearly, that is what is contemplated by the second to last sentence

of section 164.1041(2).

The City goes on to argue that the trial court reversibly erred in

denying its motion to abate because the court had a ministerial,

nondiscretionary duty to abate the case at the outset. The City relies

on the decision in City of Miami v. City of Miami Firefighters’ & Police

Officers’ Ret. Tr. & Plan, 249 So. 3d 709 (Fla. 3d DCA 2018), as

support for its assertion that the lower court had to abate the

proceedings and had no authority to hear the County’s Motion for

Injunction. Yet, that case did not deal with an emergency situation

posing an immediate threat to life, health and safety, nor did any

party argue that the trial court should deny a motion to abate and

instead hear an emergency motion pursuant to section 164.1041(2).

As such, the opinion in that case is not instructive here.

Notably, though, the City forgets that not long ago, it asked this

Court to stay the Chapter 164 proceedings between the Village of Key

Biscayne and the County in another matter to allow this Court to

review the City’s Petition for Writ of Mandamus “challenging the trial

court’s refusal to exercise its lawful jurisdiction to rule on the City’s

emergency motion to intervene in the proceedings below.” (Suppl.

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
App. to Ans. Br. 049). Indeed, in that case, the City asked the trial

court, if necessary, to lift its order abating the lawsuit between the

Village and the County pending the resolution of the Chapter 164

proceedings, and to allow the City to intervene in that lawsuit as well

as the Chapter 164 proceedings. (Suppl. App. to Ans. Br. 056-057).

The City’s justification for why it was able to seek relief from this

Court without it first exhausting the Chapter 164 procedures was

that “the City’s due process rights [were] being impaired by the

continuation of the chapter 164 proceedings below without the City’s

ability to join as a full party.” (Suppl. App. to Ans. Br. 056-057).

Indeed, the City went on to argue that the “trial court should have

lifted its abatement order to rule on the City’s motion.” Id. This Court,

at the City’s request, entered an order staying the chapter 164

proceedings pending the Court’s review of the City’s Petition for Writ

of Mandamus. (Suppl. App. to Ans. Br. 047-048).

What’s good for the goose, must also be good for the gander. The

City affirmatively argued that the trial court had jurisdiction to grant

the relief it sought against another governmental entity without the

City first initiating and exhausting the Chapter 164 procedures

because the City’s significant legal rights were being compromised if

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
the court did not immediately act. The City is now taking a contrary

legal position in this case because it suits them. The City should be

judicially estopped from doing so. See Blumberg v. USAA Cas. Ins.

Co., 790 So. 2d 1061, 1066 (Fla. 2001) (“Judicial estoppel is an

equitable doctrine that is used to prevent litigants from taking totally

inconsistent positions in separate judicial, including quasi-judicial,

proceedings.) Holding otherwise would allow the City to “mak[e] a

mockery of justice by inconsistent pleadings, and playing fast and

loose with the courts.” Id.

Moreover, had the trial court granted the City’s motion to abate

without first hearing or ruling on the County’s Motion for Injunction,

the County would not have had a remedy at law because the status

quo would have been preserved in the interim, i.e., the City’s

dangerous concrete barriers and other obstructions would have

continued to obstruct the public streets for an extended period of

time creating the risk of serious injury or death. Instead, the trial

court correctly heard and ruled on the emergency matter—the

concrete barriers and other dangerous obstructions—and left the

merits of the case—i.e., whether the City had the authority to

implement any temporary or permanent road closures without

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
County review and approval—to be dealt with for another day.

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION

IN GRANTING THE COUNTY’S MOTION FOR INJUNCTIVE
RELIEF

Generally, “[a] temporary injunction should only be granted

where there is a showing of (1) the likelihood of irreparable harm and

the unavailability of an adequate remedy at law, (2) a substantial

likelihood of success on the merits, (3) that the threatened injury to

petitioner outweigh[s] any possible harm to the respondent, and (4)

that the granting of the preliminary injunction will not disserve the

public interest.” Miami-Dade Cnty. v. Fernandez, 905 So. 2d 213, 215

(Fla. 3d DCA 2005) (quoting Cosmic Corp. v. Miami-Dade Cnty., 706

So. 2d 347, 348 (Fla. 3d DCA 1998)). As fully set forth below, the

County satisfied all four required elements and, as such, was entitled

to a temporary injunction against the City. Indeed, the City in its

initial brief did not challenge any of the factual findings made by the

trial court.

1. The City-installed concrete barriers and other road

obstructions caused the likelihood of irreparable harm.

The County is not required to establish evidence in support of

irreparable harm. Where the government seeks an injunction in the

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
exercise of its police power, “any alternative legal remedy is ignored

and irreparable harm is presumed.” Metropolitan Dade County v.

O’Brien, 660 So. 2d 364, 365 (Fla. 3d DCA 1995) (finding that a

complaint merely alleging a violation of Miami-Dade County’s zoning

ordinance was sufficient on its face to justify injunctive relief); see

also Fernandez, 905 So. 2d at 215; Dade Cnty. v. Dunn, 693 So. 2d

1035 (Fla. 3d DCA 1997). Nonetheless, the unsafe obstruction of

traffic on a road, and in this case four intersections within one

neighborhood, created the real and immediate potential for loss of life

and property.

Frank P. Guyamier, P.E., Deputy Director of Engineering and

Planning of DTPW and the County Engineer, opined that the concrete

barriers placed by the City of Miami created a hazardous road

condition. According to Deputy Director Guyamier, the concrete

barriers installed by the City of Miami were typically used at

construction sites or for bridge deck installation. (App. 016 at ¶ 4).

Due to the inflexible nature of concrete, the barriers are designed to

be placed parallel to the path of traffic flow not perpendicular to

oncoming traffic in the manner that they have been erected by the

City. See id. The blunt ends of the barriers are not protected with any
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
form of crash cushions, and therefore, severe bodily harm can result

upon impact. See id. Thus, the City’s rerouting of traffic and

installation of road closures, and utilization of the concrete barriers

for such purposes posed a dangerous and improper condition. See

id.

Moreover, the concrete obstructions were installed only one

block south of Coral Way, parallel to Coral Way and perpendicular to

the traveling motorist who could have turned onto the subject public

streets. (App. 016-017 at ¶ 5). Thus, the motorist would have had

limited opportunity to accomplish an evasive maneuver to avoid head

on impact with the concrete barriers. See id. Deputy Director

Guyamier also stated that this danger was further exacerbated by the

utilization of vehicles as traffic control devices blocking the public

road, the absence and inadequacy of sufficient reflectors, the

reflectors installed in the ground lacking a break away base

connector, and inadequate warning signs, all of which could have

resulted in serious harm to a traveling motorist See id.

In short, it was Deputy Director Guyamier’s opinion based on

his 20 plus years of experience as a civil engineer, that the then

existing condition of the concrete barriers was extremely dangerous

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
and should have been immediately removed. (App. 017 at ¶ 6). For

that reason, and due to the imminent threat to life, health and safety

of the traveling public, upon becoming aware of the concrete barriers,

Deputy Director Guyamier recommended that the obstructions be

removed. (App. 015-016 at ¶ 3). Despite the County’s various

attempts to resolve this matter and remove the unsafe conditions, the

concrete barriers and other road obstructions remained in place

causing the likelihood of irreparable harm.

2. The County has a substantial likelihood of success on the

merits.

The County has a substantial likelihood of success on the

merits based on the substantial evidence that the City is in violation

of the Florida Statutes, the County Charter, and the County Code by

installing, allowing, and maintaining barriers along the obstructed

intersections which prevent the normal flow of traffic. The County

will be substantially likely to succeed on the merits in seeking to

permanently enjoin the City from future violations since the City’s

actions were and continue to be in violation of the law. Polk County

v. Mitchell, 931 So. 2d 922, 926 (Fla. 2d DCA 2006) (ruling that the

county produced sufficient evidence establishing the defendant’s

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
violation of the county’s land development ordinance).

Specifically, section 336.02, Florida Statutes, vests county

governments “with the general superintendence and control of the

county roads and structures within their respective counties, and

they may establish new roads, change and discontinue old roads, and

keep the roads in good repair in the manner herein provided.” Fla.

Stat. § 336.02. Moreover, section 1.01(A)(1) of the County Charter

vests the Board of County Commissioners (“Board”) with the power

to “provide and regulate arterial, toll, and other roads, bridges,

tunnels, and related facilities and develop and enforce master plans

for the control of traffic and parking.” Section 1.01(A)(1) of the County

Charter. Notably, the Florida Supreme Court, in Miami Shores v.

Cowart, when addressing the issue of preemption, held that Miami-

Dade County traffic regulation preempts and supersedes any

municipal traffic regulation because a County “ordinance

establishing uniformity of traffic control throughout the metropolitan

area [] is specifically authorized by §1.01A(1) of the Home Rule

Charter and is in accord with the intent and purpose of the

constitutional authority granted by the Home Rule Amendment.” 108

So. 2d 468, 472 (Fla. 1958); see also City of Miami v. Metropolitan
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
Dade County, 407 So. 2d 243 (Fla. 3d DCA 1981) (“In Miami Shores

v. Cowart, the Supreme Court found ample authority [to hold] traffic

control to be a municipal function that could be most effectively

carried on under a uniform plan of regulation applicable to the

County as a whole.”).

The Board, in turn, delegated these powers to the County’s

traffic and transportation department. Specifically, section 2-96.1 of

the County Code provides that “from and after September 16, 1960,

all traffic engineering services shall be performed by the

County’s traffic and transportation department, and such

department shall have exclusive jurisdiction over all traffic control

devices in both the incorporated and unincorporated areas of the

county, and shall have exclusive jurisdiction to exercise the powers,

duties and functions set forth in [section 2-96.1].” Section 2-96.1 of

the County Code (emphasis added). Indeed, the City’s

Intergovernmental Agency Agreement with the County explicitly

recognizes the County’s exclusive jurisdiction over “all traffic control

and traffic engineering services in Miami-Dade County.” See Exhibit

D to Complaint.

Section 2-95.1(d) defines “traffic engineering” as “that phase

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
of engineering which deals with the planning and geometric

design of streets, highways, roads, alleys, or other places used

for travel or parking of motor vehicles, and abutting lands,

and with traffic operation thereon, as the use thereof is

related to the safe, convenient, economical and feasible

transportation of persons and goods.” Section 2-95.1(d) of the

County Code (emphasis added). The County Code goes on to state

that “[a]ll municipalities in Miami-Dade County are prohibited from

exercising any such powers, duties and functions, and shall not

interfere with the performance thereof by said county

department. . . .” Section 2-96.1 of the County Code (emphasis

added). And as importantly, the County Code explicitly provides that

the County’s traffic and transportation department shall “retain

exclusive jurisdiction over the permanent closure of access to

any road or street.” Id.

Additionally, section 316.2045, Florida Statutes, provides that

“[i]t is unlawful for any person or persons willfully to obstruct the

free, convenient, and normal use of any public street, highway, or

road by impeding, hindering, stifling, retarding, or restraining traffic

or passage thereon, . . . or by endangering the safe movement of

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
vehicles or pedestrians traveling thereon.” See also 30-388.12,

County Code.

The City has intentionally interfered with the County’s exercise

of its authority to ensure the safety of all roads in the County by

unilaterally closing four municipal roads in order to modify the flow

of traffic in the absence of approval by the County. In so doing, the

City has created an ongoing public safety hazard in violation of the

state law, County Charter, and County Code. Based on the evidence

and the provisions of state law, the County Charter, and the County

Code, the County has a substantial likelihood of success on the

merits.

3. The threatened injury outweighed harm to the City.

The threatened injury caused by the City outweighs any harm

to it because the evidence showed that the concrete barriers posed a

serious danger to life and property and the County Code clearly

provides that all traffic engineering decisions within the incorporated

and unincorporated areas of the County lie solely within the

discretion of the County. The County has merely requested

compliance with its ordinances and the laws in order to promote the

health and safety of the general public. An injunction merely

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
requiring compliance with binding laws cannot be said to unduly

harm the City. Mitchell, 931 So. 2d at 926. The Third District Court

of Appeal has held that where the Defendant “[was] aware of [its]

violations, and continue[s] 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.”

Fernandez, 905 So. 2d at 215, quoting O'Brien, 660 So. 2d at 365.

Further, judicial balancing of the equities in code enforcement

cases is not allowed as it could lead to substantial noncompliance

with the law. See Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191, 207-

08 (Fla. 4th DCA 2001) (balancing equities inappropriate in

injunctive relief case concerning an alleged violation of zoning laws

in part because “[i]t would allow developers such as this one to build

in defiance of the limits and then escape compliance by making the

cost of correction too high”). The equities must always favor

enforcing the law if the enforcement action is meritorious. See

Mitchell, 931 So. 2d at 926 (stating that “an injunction merely

requiring compliance with binding laws cannot be said to unduly

harm [the defendant]”).

In the instant case, the County’s request for injunctive relief

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
merely sought to have the City comply with the Miami-Dade County

Code in order to preserve life and property. Therefore, the threatened

injury here to the safety and welfare to the public substantially

outweighed any harm to the City.

4. Injunctive relief did not disserve the public interest.

Because sections 2-95.1, 2-96.1, and 30-388.12 of the County

Code seek to protect the public safety by ensuring that the public

streets are designed and maintained in a manner that is safe for

vehicles and pedestrians, the emergency injunction entered by the

trial court did not disserve the public interest. The public has an

interest in compliance with a County Ordinance. Fernandez, 905 So.

2d at 216 (“[T]he county and its citizens have a clear public interest

in compliance with the county’s ordinances and the city zoning

plan”); State Dept. of Environmental Regulation v. Kaszyk, 590 So. 2d

1010, 1012 (Fla. 3d DCA 1991) (“[I]ssuing the injunction is in the

public interest, as the statutes and regulations that DER seeks to

enforce are designed to protect the public health and welfare.”);

Keystone Creations, Inc. v. City of Delray Beach, 890 So. 2d 1119,

1125 (Fla. 4th DCA 2004) (holding that even where there is “no

evidence [ ] operations were dangerous, or posed a danger of harm to

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
the community” the public has an interest in seeing that the law is

complied with); P.M. Realty Invs. v. City of Tampa, 779 So. 2d 404,

406-07 (Fla. 2d DCA 2000) (“[T]he public has an interest in seeing

that city ordinances and zoning plan are complied with”); Mitchell,

931 So. 2d at 926 (finding that an injunction merely requiring

compliance with binding laws could not be a disservice to the public).

In this case, the County’s traffic and transportation code

provisions seek to preserve and protect the safety of the community

by maintaining a uniform system for the design, construction, and

operation of all roads within the incorporated and unincorporated

areas of the County. As such, the lower court’s granting of the

preliminary injunction was necessary to protect the health and safety

of the residents and surrounding neighbors of the subject obstructed

intersections.

III. THE PETITION SHOULD BE DISMISSED AS MOOT

Florida law is well-settled that “[a]n issue is moot when the

controversy has been so fully resolved that a judicial determination

can have no actual effect.” Desroses v. State, No. 3D20-1299, 2021

WL 608321, at *1 (Fla. 3d DCA February 17, 2021) (citing Godwin,

593 So. 2d at 212). As the Florida Supreme Court further noted in

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
Godwin, “[a] case is ‘moot’ when it presents no actual controversy or

when the issues have ceased to exist.” Godwin, 593 So. 2d at 212

(citation omitted).

The City asks this Court to abate the underlying action until the

provisions of Chapter 164 of Florida Statutes are exhausted. When

the Board, in compliance with Chapter 164 of Florida Statutes,

adopted County Resolution No. R-196-21 by a three-fourths vote, all

requirements of Chapter 164 were completely exhausted in

accordance with Florida law. As a result of Resolution No. R-196-21,

no procedural steps required by Chapter 164 remain to be completed,

removing any actual controversy and rendering the Petition moot.

Since compliance with Chapter 164 is the only remedy the City seeks,

which compliance has unquestionably occurred, there is no longer a

need for any further judicial labor by this Court, paving the way for

a full and expeditious ventilation of the underling dispute in the trial

court. Fla. Stat. §164.1041(2). Accordingly, this Court should dismiss

the City’s Petition as moot.

CONCLUSION

The lower court did not err in denying the City’s motion to abate,

nor did it abuse its discretion in granting the County’s Motion for
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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
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Injunction. Indeed, the trial court’s order was not only agreed to by

the City in open court, the City invited said order and then reaped

the benefit of the order allowing the replacement Type III barriers.

The City has waived the ability to challenge the lower court’s order

on the County’s Motion for Injunction.

The Court should reject the City’s invitation to further delay the

resolution of the merits of this case and to artificially prolong a

purportedly “temporary” road closure which clearly was not the

intent of the lower court. It should dismiss the Petition as moot and

affirm the lower court’s order on the County’s Motion for Injunction.

Respectfully submitted,

GERALDINE BONZON-KEENAN
Miami-Dade County Attorney
Stephen P. Clark Center
111 N.W. 1st Street, Suite 2810
Miami, Florida 33128

By: /s/ Annery Pulgar Alfonso

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
 Bruce Libhaber
Florida Bar No. 121339
Debra Herman
Florida Bar No. 818658
Annery Pulgar Alfonso
Florida Bar No. 90854
Dale P. Clarke
Florida Bar No. 90967
Assistant County Attorneys
Telephone: (305) 375-5151
Fax: (305) 375-5611
Email:
Annery.Alfonso@miamidade.gov
Bruce.Libhaber@miamidade.gov
DHerman@miamidade.gov
Dale.Clarke@miamidade.gov

Attorneys for Appellant

CERTIFICATE OF SERVICE

I certify that the foregoing document has been e-mailed to all

parties of record on June 11, 2021, to the e-mail address(es) each

has registered with the Florida Courts E-Filing Portal.

__/s/ Annery Pulgar Alfonso

Assistant County Attorney

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151
 CERTIFICATE OF COMPLIANCE WITH RULE 9.210

I HEREBY CERTIFY that this brief is in Bookman Old Style 14-

point font, in compliance with Fla. R. App. P. 9.210.

__/s/ Annery Pulgar Alfonso

Assistant County Attorney

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OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY
TELEPHONE (305) 375-5151