MARTIN DRAGOMIRECKY, APPELLANT,
v.
TOWN OF PONCE INLET, FLORIDA, APPELLEE
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The court held that the trial court did not abuse its discretion in denying the motion for an injunction and stay to prevent the demolition of a house constructed in violation of building codes.
[1] A preliminary injunction is an extraordinary remedy requiring the movant to establish a likelihood of irreparable harm, unavailability of an adequate remedy at law, subst…
[2] A trial court's denial of a preliminary injunction is presumed correct on appeal and is reversible only upon a showing of a clear abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceThe Town of Ponce Inlet issued a demolition order for a house under construction due to numerous building code violations, including structural defici…
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PER CURIAM.
Martin Dragomirecky appeals a non-final order denying his motion for injunction and alternative motion to stay the demolition of a house he has been constructing in Ponce Inlet, Florida, over a period of approximately five years.
The Town of Ponce Inlet issued a stop work order on July 11, 2002, alleging that Dragomirecky failed to construct the house in accordance with applicable building codes thereby rendering the new construction unsafe. The stop work order was followed by a notice that the building was unsafe and an order to vacate and demolish on November 27, 2002. The demolition order was based upon a code violation report that identified approximately 151 violations of building codes including, inter alia, use of inadequate weight-bearing structural components, improper installation of electric, plumbing and ventilation systems and significant structural deviation from the approved building design. Apparently, Dragomirecky decided to add a third story to the construction that deviated from the original plans.
Dragomirecky appealed to the Board of Adjustments and Appeals of the Unsafe Abatement Code, (“Board”), a specialized review board composed of five profession als trained in the areas of civil engineering, architectural and general contracting. The Board held eight evidentiary hearings and concluded that the house must be vacated and demolished.
Next, Dragomirecky unsuccessfully petitioned the circuit court for a writ of certiorari to review the Board’s final order and also requested a preliminary injunction and a stay to prevent the Town of Ponce Inlet from demolishing his house.
A preliminary injunction is an extraordinary remedy which should be granted only if the party seeking the injunction establishes the following criteria: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of the public interest. E.g., Yardley v. Albu, 826 So. 2d 467, 470 (Fla. 5th DCA 2002).
A trial court’s denial of a preliminary injunction comes to the appellate court with a presumption of correctness, and is reversible only upon a showing of a clear abuse of discretion. E.g., Rollins, Inc. v. Parker, 755 So. 2d 839 (Fla. 5th DCA 2000); Mercer v. Raine, 443 So. 2d 944 (Fla.1983).
Where the potential injury to the public outweighs an individual’s right to relief, the injunction will be denied. E.g., City of Ormond Beach v. City of Daytona Beach, 794 So. 2d 660 (Fla. 5th DCA 2001); Hall v. City of Orlando, 555 So. 2d 963 (Fla. 5th DCA 1990).
Dragomirecky insists that he established the criteria required by Yardley.
We disagree. His assertion that if the house is demolished irreparable harm will result because all evidence of his alleged compliance with budding codes will be lost is unpersuasive in view of the eight evidentiary hearings held before the Board that are replete with exhibits, photographs and expert testimony. It is true that he will be financially harmed if demolition occurs, but the law permits such harm when it results from a valid exercise of police power. See, e.g., Thomas v. City of West Palm Beach, 299 So. 2d 11 (Fla.1974) (holding that an ordinance which delegated to building official discretion to demolish a dwelling unfit or unsafe for human habitation was a valid and constitutional exercise of city’s police power where the reasonableness and relationship of the ordinance to the public health, safety and welfare was fairly debatable).
Regulations duly enacted pursuant to lawful authority that relate to the public health, safety, morals or general welfare are presumptively valid. E.g., Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee, 111 So. 2d 439, 443, 444 (Fla.1959).
Courts should not substitute their judgment as to the reasonableness of a regulation when such reasonableness is fairly debatable.
Finally, a substantial likelihood of success on the merits has not been demonstrated. The Board found that substantial competent evidence was presented to demonstrate that Dragomirecky’s efforts at building his house over a period of five years resulted in a building that was unsafe, dangerous to human life and in violation of unchallenged code regulations.
The trial court’s order denying the injunction and stay did not depart from the essential requirements of law and does not constitute an abuse of discretion. We therefore affirm the denials.
AFFIRMED.
SAWAYA, C.J., SHARP, W., and PETERSON, JJ., concur.
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Dragomirecky v. Town OF Ponce Inlet, 891 So. 2d 633 (Fla. 5th DCA 2005)…NTED; Order QUASHED; Case REMANDED. THOMPSON and ORFINGER, JJ., concur. . The Fifth District Court of Appeal affirmed the order denying the motions for preliminary injunction and stay on September 17, 2004. See Dragomirecky v. Town of Ponce Inlet, 882 So. 2d 495 (Fla. 5th DCA, 2004). . Although all of the above-cited cases involved appeals, rule 9.130(f) also applies to certiorari proceeding.…
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The Reserve AT Wedgefield Homeowners' v. Dixon, 948 So. 2d 65 (Fla. 5th DCA 2007)…following criteria: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of the public interest.” Dragomirecky v. Town of Ponce Inlet, 882 So. 2d 495, 496 (Fla. 5th DCA 2004) (citing to Yardley v. Albu, 826 So. 2d 467, 470 (Fla. 5th DCA 2002)). Where, as here, a party that is subject to a temporary injunction chooses to file a direct appeal, rather than filing a motion to dissolve the injunction…
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Brevard Cnty. & Brevard Cnty. Fire Rescue v. Obloy (Fla. 5th DCA 2020)…. 1st DCA 1982). Furthermore, injunctions are equitable remedies that are to be sought and granted only when there is no adequate remedy available at law. See Egan v. City of Miami, 178 So. 132, 133 (Fla. 1938); Dragomirecky v. Town of Ponce Inlet, 882 So. 2d 495, 497 (Fla. 5th DCA 2004). A statutory right to a plenary appeal provides an adequate remedy at law. See, e.g., Dep’t of Bus. Reg., Div. of Alcoholic Beverages & Tobacco v. Provende, Inc., 399 So. 2d 1038, 1041 (Fla. 3d DCA 1981). Providing injunctiv…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439 (Fla. 1959)
- Yardley v. Ina Marie Albu, 826 So. 2d 467 (Fla. 5th DCA 2002)
- City OF Ormond Beach v. City OF Daytona Beach, 794 So. 2d 660 (Fla. 5th DCA 2001)
- Rollins, Inc. v. Parker, 755 So. 2d 839 (Fla. 5th DCA 2000)
- Hall v. City OF Orlando, 555 So. 2d 963 (Fla. 5th DCA 1990)
- Thomas v. City OF W. Palm Beach, 299 So. 2d 11 (Fla. 1974)