Meristem Valley Nursery, Inc. v. Metropolitan Dade County, s. 82-783

• Decision Date: 15 March 1983
• Docket Number: Nos. 82-783,82-1106,s. 82-783
• Citation: 428 So.2d 726
• Parties: MERISTEM VALLEY NURSERY, INC., Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
• Court: Florida District Court of Appeals

Page 726

428 So.2d 726

MERISTEM VALLEY NURSERY, INC., Appellant, v. METROPOLITAN DADE COUNTY, Appellee.

Nos. 82-783, 82-1106.

District Court of Appeal of Florida Third District.

March 15, 1983.

Rehearing Denied April 13, 1983.

John G. Fletcher, South Miami, for appellant.

Robert A. Ginsburg, County Atty., and Eileen Ball Mehta, Asst. County Atty., for appellee.

Before HENDRY, NESBITT and BASKIN, JJ.

HENDRY, Judge.

By this consolidated appeal we are asked to review a temporary injunction which enjoined Meristem, the appellant herein, from maintaining upon its property a trailer and a shade house without a building permit or county approval, and a subsequent mandatory injunction to remove said structures. We affirm.

After taking possession of the subject property, Meristem replaced an existing trailer on the property with a similar one, and rebuilt a shade house without a building permit or County approval. When Meristem's neighbor complained to the County about these structures, enforcement proceedings were instituted. Meristem then applied to the Board of County Commissioners for an unusual use and non-use variance in order to maintain the trailer and shade house. The Commission denied this request and on July 16, 1981 the County filed the instant action to enjoin Meristem from maintaining the structures, alleging that the shade house was constructed without a building permit or certificate of use and occupancy in violation of Section 8-1 and Section 33-8 of the Code of Metropolitan Dade County ¹ respectively, and that maintenance of the trailer violated Section 33-168 of the Code.

On October 26, 1981 following a hearing, the trial court entered the first of the two orders appealed enjoining Meristem from maintaining the structures on its property, but staying the injunction for a period of twenty-five days to allow Meristem to apply for and obtain the necessary permits or approval. Meristem moved for a new trial on the grounds that it was not the property owner and there was no proof that it had violated any ordinance, and also moved to amend the judgment to extend the time allowed for compliance with the order. While these motions were pending, but beyond the twenty-five day period of the court's order, Meristem applied to the Dade County Zoning Appeals Board for an unusual use and non-use variance. This request was denied on February 24, 1982. ² Also during this time, the County moved to dissolve the stay contained in the order granting injunctive relief and moved to find Meristem in contempt because it failed to seek a permit or authorization for the facilities within the twenty-five day period in the order. Meristem's motions to amend and for new trial were finally denied March 18, 1982, and for the first time Meristem applied for a building permit for the shade house and appealed the temporary injunction to this court. Meristem's application for a permit and certificate of use and occupancy for the shade house was denied by the Dade County Building and Zoning Department on April 22, 1982. On May 12, 1982 the trial court entered the second order appealed, directing Meristem to remove the structures for failure to make said applications within twenty-five days of the original order. This appeal followed.

Meristem attacks the injunctive orders on three grounds: first, it argues that enforcement of the ordinance in this case is a denial of equal protection as the ordinance is only enforced upon citizen complaint; second, it is argued that the temporary injunction ordering Meristem to apply for and obtain the necessary permits and/or authorizations within twenty-five days was overly broad as it required more of Meristem than was requested by the County, and the time limit imposed was more restrictive than the applicable ordinances; third, Meristem alleges that the trial court erred in entering the mandatory injunction as Meristem had complied with the original order of the court since that order did not become final until disposition of the motion for new trial.

We may summarily dispose of Meristem's constitutional argument as there is no denial of equal protection as a result of the County's enforcement of the ordinances against Meristem in this case. The ordinances themselves are valid on their face. Meristem's contention that County ordinances are never enforced with respect to trailers and shade houses and that by singling out Meristem for unequal treatment because of a citizen's complaint the law is unconstitutional as applied finds no support in the record or the law. The Florida Supreme Court has held that mere failure to prosecute all offenders is no ground for a claim of denial of equal protection, and that in order to constitute such a denial, selective enforcement must be deliberately based on an unjustifiable or arbitrary classification. Bell v. State, 369 So.2d 932 (Fla.1979) and cases cited. See also Stocks v. Lee, 144 Fla. 627, 198 So. 211 (1940) (failure of authorities to enforce an ordinance against others...