DO NOT LET EVIDENCE BE ADMITTED BEFORE THIS STATEMENT IS ON THE RECORD.
Case No.: _______________ · Respondent: _______________ · Date: _______________ · Hearing Officer: _______________
Part I — Appearance, Protest, and No Waiver
Respondent appears today under protest. Respondent does not waive, and expressly reserves, every objection, defense, motion, constitutional right, statutory right, administrative right, and judicial review right by appearing today. Appearance at this hearing is not an admission of jurisdiction, subject matter jurisdiction, personal jurisdiction, notice sufficiency, service sufficiency, authority, forum, factual accuracy, methodological validity, or liability of any kind. Nothing Respondent says, submits, or does today shall be construed as a waiver of any previously unwaived right.
Part II — Recording and Official Record
Respondent requests confirmation that this hearing is being recorded in its entirety and requests instructions for obtaining the certified recording and transcript after the hearing. Respondent submits this written statement as a documentary exhibit to be marked and admitted as part of the official record. If this hearing is not being recorded, Respondent objects to proceeding without a complete verbatim record and requests that recording be arranged before County testimony begins.
Part III — Due Process: The Asymmetry Objection — Core Constitutional Ground
Respondent objects to proceeding on the ground that the County has violated Respondent's right to procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Florida Constitution.
The County, invoking Florida Statute § 373 and Florida Administrative Code Rule 62-340, required Respondent to submit pre-hearing information, positions, or materials approximately two weeks before this hearing. The County has not extended the same pre-hearing disclosure obligation to itself. The County has not produced — with the same two-week lead time it demanded from Respondent — its complete enforcement file, inspection reports, field notes, photographs with EXIF metadata, maps, GIS layers, witness list, exhibits, Rule 62-340 three-parameter methodology records, Chapter 373 delegation instruments, or any other evidence it intends to rely upon today.
This asymmetric disclosure procedure — requiring pre-hearing production from the respondent while withholding equivalent production from the County — deprives Respondent of a meaningful opportunity to be heard, to review the evidence before the hearing, to prepare a defense, to consult an expert, to investigate the factual basis for the alleged violation, to cross-examine the County's witnesses effectively, and to preserve a complete record for judicial review. This constitutes a denial of procedural due process. See Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg v. Kelly, 397 U.S. 254 (1970).
Additionally, all public records requests submitted by Respondent to MDC, MDC DERM, the Miami-Dade County Attorney, and all other agencies prior to this hearing have not been answered, have been produced incompletely, or have been produced with documents that do not include the materials specifically requested. The failure to produce complete and timely public records — including inspection records, field notes, methodology data, interagency communications, and delegation instruments — before this hearing independently constitutes a due process violation and prevents Respondent from mounting a complete defense. Respondent preserves this ground as an independent basis for certiorari relief.
Part IV — Notice and Service Objections
Respondent objects to the adequacy of notice and service on the following grounds, each preserved independently:
One — the Notice of Violation does not identify the exact subsection of Chapter 24 of the Miami-Dade County Code allegedly violated, the exact conduct prohibited, or the specific factual basis supporting each element of the charge. General citation to a code section without specific factual detail does not constitute constitutionally or statutorily adequate notice.
Two — the Notice of Violation does not identify the exact date of the alleged violation, the exact location within the property where the violation allegedly occurred, or the exact evidence the County contends supports each element of the charge.
Three — proof of valid service or posting has not been established on the record. A certificate of service or affidavit of posting has not been produced and authenticated.
Four — the time between the mailing date and this hearing did not provide Respondent with meaningful preparation time, particularly in light of the County's failure to produce its complete evidence file and public records in advance.
Part V — Jurisdiction, Authority, and Forum Objections
Respondent objects to jurisdiction, authority, and forum on the following grounds, each preserved independently:
One — the County has not identified whether this proceeding is a Chapter 8CC enforcement hearing, a Chapter 24 DERM enforcement action, an EQCB proceeding, or a Director-level proceeding. Each forum has different procedures, standards, burdens, and appellate paths. Respondent cannot preserve issues for review without knowing the exact forum and its governing procedural rules.
Two — the County has not established subject matter jurisdiction over the alleged violation at this property.
Three — the County has not identified the exact subsection of Chapter 24 authorizing the specific enforcement action, the specific corrective remedy, and the specific penalty sought.
Four — the County has not produced the delegation instrument under Florida Statute § 373.441 and Rule 62-344, F.A.C., showing that FDEP delegated authority to Miami-Dade County for this specific type of regulatory action at this specific type of resource. Without that instrument, DERM has no authority to conduct this proceeding under state law.
Five — if the County is relying on a Director order, that order must be produced with proof of service and proof that it has not been superseded, modified, appealed, or stayed.
Six — if this is an EQCB proceeding, the County must identify the basis for EQCB jurisdiction and the applicable EQCB procedural rules governing this hearing.
Part VI — Rule 62-340 and Florida Statute § 373 Methodology Objections
Respondent objects to any wetland, surface water, fill, hydrology, or environmentally sensitive area theory on the following grounds, each preserved independently:
One — Rule 62-340, F.A.C., requires a documented three-parameter methodology — hydrophytic vegetation, hydric soils, and wetland hydrology — each documented with field-collected data at identified sample points. No completed Rule 62-340 data forms have been produced.
Two — No vegetation data has been produced: no species list, no FAC, FACW, or OBL designations from the current USACE wetland plant list, no dominance calculations, and no documentation of the vegetation parameter at any sample point.
Three — No soils data has been produced: no Munsell color notations at documented depths, no hydric soil indicator documentation, and no reference to the Hydric Soils of Florida publication for any sample point.
Four — No hydrology data has been produced: no contemporaneous water table depth measurements, no documentation of primary or secondary hydrologic indicators at any sample point, and no antecedent moisture data establishing that observed conditions represent normal conditions.
Five — No GPS coordinates, no boundary maps, and no delineation transect data have been produced for any sample point or for the alleged wetland boundary.
Six — No delineator qualifications, credentials, or training records have been produced for any person who conducted or reviewed the alleged wetland determination.
Seven — No FDEP or SFWMD formal jurisdictional determination or inter-agency correspondence has been produced.
Eight — A narrative statement in an inspection report that "wetlands were observed" or "hydric conditions exist" is not a Rule 62-340 wetland determination. The completed three-parameter data form is the determination. Without that form, there is no legally sufficient evidentiary basis for any enforcement action under Florida Statute § 373 or Chapter 24 premised on a wetland or surface water theory.
Part VII — Evidence Objections
Respondent objects to the admissibility of any evidence offered by the County on the following grounds, each preserved independently:
One — Same-Day Evidence: the County has not provided its complete evidence file to Respondent in advance of this hearing with sufficient time for review, investigation, expert consultation, and rebuttal. Evidence not produced to Respondent at least ten days before this hearing constitutes same-day evidence. Respondent objects to its admission.
Two — Photographs: must be authenticated by the person who took them, including exact date, exact time, exact GPS location, equipment used, and whether the photograph accurately depicts the condition alleged. EXIF metadata must be produced and authenticated.
Three — Maps and GIS Layers: must be authenticated as to data source, data date, accuracy, and methodology used to apply any regulatory boundary to this property.
Four — Inspection Reports: must be authenticated by the inspector with personal knowledge, must be produced in their original form including all drafts, revision history, and digital metadata showing when each version was created and by whom. Any version produced today that differs from any prior version is itself evidence of post-hoc reconstruction.
Five — Foundation: Respondent objects to any exhibit for which the County cannot establish personal knowledge, authentication, relevance, and compliance with the competent substantial evidence standard applicable in administrative proceedings.
Six — Hearsay: Respondent objects to any out-of-court statement, agency communication, or inter-agency referral offered for the truth of the matter asserted without an applicable recognized exception.
Part VIII — Agricultural Exemption Preservation
Respondent preserves and does not waive the following exemption defenses:
One — Florida Statute § 373.406(2) exempts from the Environmental Resource Permit program activities that are part of normal or ongoing farming or ranching operations, including construction or maintenance of farm roads, farm ditches, or other farm structures. If the activity alleged constitutes a normal or ongoing farming operation, it is exempt and this enforcement action is without legal foundation regardless of any wetland determination.
Two — Rule 62-340.450, F.A.C., provides a parallel exemption for farming activities from the Rule 62-340 wetland delineation program. The County has not produced any analysis, evaluation, or documentation showing the agricultural exemption was considered and found inapplicable before this citation was issued.
Three — Respondent's property holds or has held agricultural classification under Florida Statute § 193.461. The County has not demonstrated that the alleged activity falls outside the scope of the agricultural exemption. Respondent requests that the County identify on the record the specific evidence it contends establishes that the agricultural exemption does not apply.
Part IX — Federal Law, P.L. 101-229, and Constitutional Takings Preservation
Respondent preserves the following federal and constitutional defenses and does not waive them by proceeding in this administrative forum:
One — the property at issue is located within or adjacent to the Las Palmas Community, formerly known as The 8.5 Square Mile Area, specifically identified in Public Law 101-229, codified at 16 U.S.C. § 410r-8, as an area for which Congress authorized and directed the Secretary of the Army to provide flood protection as a direct condition of the Modified Water Deliveries to Everglades National Park project.
Two — the hydrological conditions that the County characterizes as jurisdictional wetlands are, in whole or in part, the product of federal water management operations conducted by the U.S. Army Corps of Engineers pursuant to Alternative 6D of the Modified Water Deliveries project. A government agency may not create hydrological conditions through federally authorized water management operations and then use those same conditions as the factual basis for an enforcement action against a property owner whose use was specifically contemplated and protected by an Act of Congress.
Three — MDC DERM's enforcement action within the 8.5 SMA may be preempted by P.L. 101-229 under the Supremacy Clause, Article VI, Clause 2 of the United States Constitution.
Four — the enforcement action may constitute a regulatory taking of Respondent's property without just compensation, compensable under the Fifth and Fourteenth Amendments, the Tucker Act (28 U.S.C. § 1491), Florida inverse condemnation (Art. X, § 6, Fla. Const.), and the Bert Harris Governmental Action Affecting Real Property Act (§ 70.001, F.S.).
Five — Respondent preserves all federal remedies in the U.S. District Court for the Southern District of Florida and the U.S. Court of Federal Claims and does not consent to administrative resolution of any federal claim.
Part X — Five Formal Motions [Respondent requests a ruling on each, stated on the record with reasons for any denial]
Motion One — Continuance: Respondent moves for a continuance of not less than thirty days to allow: complete production and review of the County's evidence file and all public records requested but not yet produced; production and review of the complete Rule 62-340 three-parameter methodology record; production and review of Chapter 373 delegation records; completion of outstanding Chapter 119 and federal FOIA requests to MDC, DERM, FDEP, SFWMD, FDACS, USACE, EPA, USFWS, NPS, and NRCS; expert consultation on Rule 62-340 methodology and the agricultural exemption; evaluation of federal 8.5 SMA and P.L. 101-229 records; and full preparation of Respondent's defense.
Motion Two — Stay of All Deadlines: Respondent moves for a stay and tolling of all compliance deadlines, correction deadlines, penalty accrual, continuing fines, lien recording, permit consequences, restoration demands, and classification consequences pending final resolution of this proceeding and any judicial review.
Motion Three — Exclusion of Undisclosed Evidence: in the alternative, if the continuance is denied, Respondent moves to exclude all evidence not produced to Respondent at least ten days before this hearing with sufficient advance time for review, rebuttal preparation, expert consultation, and meaningful cross-examination.
Motion Four — Identification of Authority on the Record: Respondent moves for an order requiring the County to identify, before presenting any evidence: the exact Chapter 24 subsection authorizing this action; the exact Florida Statute § 373 authority and delegation instrument; whether this is an 8CC, Chapter 24, Director, or EQCB proceeding; and the exact corrective remedy and penalty sought.
Motion Five — Production of Rule 62-340 Record Before Wetland Testimony: Respondent moves for an order requiring the County to produce the complete Rule 62-340 delineation record — all data forms, field notes, photographs with metadata, GPS coordinates, species lists with dominance calculations, soils data with Munsell notations, hydrology data, boundary maps, and delineator qualifications — before presenting any wetland, surface water, or hydrology testimony or evidence.
Part XI — Three Grounds for Certiorari Review, Stated Explicitly on the Record Now
Respondent explicitly preserves and states on the record the following grounds for writ of certiorari to the circuit court for Miami-Dade County:
Ground One — Departure from the Essential Requirements of Law: the County's enforcement action is not supported by the required statutory authority; was not conducted through a valid and produced delegation instrument; does not rest on a Rule 62-340 three-parameter methodology record compliant with applicable administrative law; does not account for the agricultural exemption under § 373.406(2) and Rule 62-340.450; and may be preempted by federal law under P.L. 101-229 and the Supremacy Clause.
Ground Two — No Competent Substantial Evidence: the County has not produced and cannot produce at this hearing the evidentiary record required by applicable law to support a wetland or surface water determination — namely, completed three-parameter data forms, authenticated photographs with EXIF metadata, GPS-verified boundary maps, species lists with dominance calculations, hydric soils data with Munsell notations, and contemporaneous hydrology measurements. A finding based solely on an inspector's narrative testimony, without the underlying data record, does not constitute competent substantial evidence under Florida administrative law.
Ground Three — Denial of Procedural Due Process: the County required Respondent to submit pre-hearing information approximately two weeks before this hearing while withholding equivalent pre-hearing disclosure of its own evidence file, methodology records, and public records. Additionally, all public records requests submitted by Respondent to MDC, DERM, and related agencies have not been answered completely or timely. The combination of asymmetric pre-hearing disclosure and failure to produce requested public records deprived Respondent of a meaningful opportunity to prepare a defense, consult an expert, and cross-examine the County's witnesses effectively. This constitutes a denial of procedural due process under the Fifth and Fourteenth Amendments and Article I, Section 9 of the Florida Constitution.
Respondent requests that the ruling on each motion in Part X be stated on the record with the specific reason for any denial so that each denial is independently preserved as an appellate issue.
Part XII — Final Closing Preservation Statement
Respondent does not consent to an informal proceeding, a truncated record, or a waiver of any right by the Hearing Officer's decision to proceed over Respondent's objections. Respondent reserves the right to proffer any excluded evidence into the record. Respondent reserves the right to seek certiorari review of any adverse final order in the Circuit Court for Miami-Dade County, Eleventh Judicial Circuit. Respondent reserves the right to pursue all federal remedies in the U.S. District Court for the Southern District of Florida, the U.S. Court of Federal Claims, and any other available federal forum. Respondent reserves the right to seek injunctive relief, declaratory relief, and monetary damages in any available court. Nothing in this proceeding shall be deemed a waiver of any right not expressly waived in writing signed by Respondent. This statement is submitted in written form for admission into the official record of this proceeding and is additionally made on the audio record under protest.
Signature Block — Sign Before the Hearing — Hand This Page to the Hearing Officer
Submitted by Respondent under protest for admission into the official record as Respondent's Exhibit 1.
Respondent Name (print): ____________________________________________
Signature: _____________________________________ Date: ______________
Case No.: ______________________ Property Address: _______________________________
Folio No.: ______________________ Hearing Date: ________________________________