By: Randall Gilbert, Esq. ♦


  Randall L. Gilbert, was born in Miami, Florida, has argued to the Supreme Court of Florida and the District Courts of Appeal, Recipient of the National Institute of Trial Advocacy Award, 2003. Florida Certified Master Plumbing Contractor’s license, 1993; Member of Attorneys’ Title Fund, Vice Chairman of the Broward County Construction Lawyer's Association, 2005-2006; Broward County Bar Association; Licensed Florida Real Estate Agent, 2005; Admitted to Florida Bar, 1999, Practices in U.S. District Court, Southern and Northern Districts of Florida, 2000. Education: University of Florida (B.A., 1996); Nova Southeastern University, Shepard Broad Law Center (J.D., 1999). Practice Areas: Construction Litigation; Commercial Litigation; Contracts; Corporate; Appeals, and Real Property. Email: Randall L. Gilbert

 Firm Profile: The Firm counsels the construction industry primarily dealing with all sizes of State and Federal litigation and arbitration. Typical claims include licensure, construction liens and bonds, Non-payment, DBPR complaints, bidding, delays, defects, contract preparation and negotiation. 



Failure to obtain permit is unlawful and could place a Contractor in breach.

It is unlawful for any person, firm, corporation, or governmental entity to construct, erect, alter, modify, repair, or demolish any building within Florida without first obtaining a permit. Florida Statute §553.79(1) (2006).  It is also a violation of the licensing statutes to commence or perform work for which a building permit is required pursuant to an adopted state building code without such permit being in effect.  Florida Statute §489.127(h) (2006).  Moreover, a Contractor’s failure to obtain a permit may be a material breach of a contract if the contract requires the Contractor to obtain the permit. Braverman v. Van Bower, Inc., 583 So.2d 381 (Fla. 3rd DCA 1991) (By failing to secure a permit for the screen enclosure, building the enclosure after the permit had been denied, and which was larger than the zoning ordinances allowed, contractor materially breached, and did not substantially perform contract.).  However, the court in In re Cummings, 2000 WL 33310906, *3 (Bkrtcy.S.D.Fla. 2000), distinguished itself from Van Bower, Inc. holding that the “failure to obtain a work permit or to file plans and specifications does not preclude recovery under the contract by the terms of which the services were rendered, at least where the work was otherwise performed in accordance with the requirements of law” especially where the contractor and its subs did obtain permits at various stages of the work, and the work performed ultimately did pass inspection.


Pre-Requisite to issuing permit.

A permit for construction, erection, alteration, modification, repair, or demolition of any building or structure may not be issued until the local building code administrator or inspector has reviewed the plans and specifications required by the Florida Building Code, or local amendment thereto, for such proposal and found the plans to be in compliance with the code. Florida Statute §553.79(2) (2006)


Time for issuing permits for single-family houses.

A building permit for a single-family residential dwelling must be issued within 30 working days of application therefor unless unusual circumstances require a longer time for processing the application or unless the permit application fails to satisfy the Florida Building Code or the enforcing agency's laws or ordinances.” Florida Statute §553.79(13) (2006).



Time for issuing other types of permits.

Unless there is a local rule, law, or ordinance specifying different timeframes for review of local building permit applications, Florida Statute §553.792 (2006) was enacted July 1, 2005 specifies the timeframes for issuing Permits for: (1) accessory structures[1]; (2) alarms; (3) electrical; (4) irrigation; (5) landscaping; (6) lot grading and site alteration associated with the permit application (7) mechanical; (8) multifamily residential not exceeding 50 units; (9) nonresidential buildings less than 25,000 square feet; plumbing; (10) residential units other than a single family unit; (11) roofing; (12) signs; and (13) site-plan approvals and subdivision plats not requiring public hearings or public notice.


(1)             First submittal:                      Within 10 days of submitting a Permit Application, the local government shall advise the applicant what information, if any, is needed to deem the application properly completed in compliance with the filing requirements. If the local government does not provide written notice that the applicant has not submitted the properly completed application, the application shall be automatically deemed properly completed and accepted.


(2)             Re-submittals:                        Within 45 days after receiving a completed Permit Application, a local government must notify an applicant if additional information is required for the local government to determine the sufficiency of the application, and shall specify the additional information that is required. The applicant must submit the additional information to the local government or request that the local government act without the additional information.


(3)             Review after Re-Submittal:   Within 120 days following receipt of a completed application, the local government must approve, approve with conditions, or deny the Permit Application. While the applicant responds to the request for additional information, the 120-day period described is tolled.



Appealing refusal to issue permit.

Before filing suit, for a declaratory action or for mandamus relief, against the Building Authority for failing to issue a Permit, a party must exhaust its administrative remedies first.  See generally, Vanderbilt Shores Condominium Ass'n, Inc. v. Collier County, 891 So.2d 583, 585-586 (Fla. 2nd DCA 2004), citing, Skaggs-Albertson's Props., Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So.2d 113 (Fla. 2nd DCA 1976).   Therefore, appeal the denial of the Permit to the proper channels within the Building Department first, and before filing suit.  The supreme court has explained the reason:  “The administrative boards usually provided for the consideration and review of zoning problems are made up of local people, having the advantage of full local information as to the reasons behind the various zoning regulations. Their findings, while not conclusive, are indeed helpful in the ultimate determination of the rights of the parties. Moreover, the inequalities of a zoning ordinance, if called to the attention of such local administrative boards, may frequently be adjusted at that level. Such boards should, at least, be given the opportunity to afford relief, or state their reasons for not doing so.” DeCarlo v. Town of W. Miami, 49 So.2d 596, 596-97 (Fla. 1950).


Alternatives to complying with the Building Code.

The Florida Building Commission may not grant a waiver or variance from complying with the requirements of the Florida Building Code. Florida Statute 120.80(17) (2006).  However, if an alternative means of complying with the Florida Building Code is heard by a local board, if one exists, and denied, then the Florida Building Commission may hear appeals therefrom.


Applying for Variances.

If denial of the permit is based for reasons other than complying with the Florida Building Code, then the lawmakers have recognized that strict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results in particular instances. Florida Statute 120.80(17) (2006).  Agencies are authorized to grant variances and waivers to requirements of their rules.  Variances and waivers shall be granted when the person subject to the rule demonstrates that:

(1)    The purpose of the underlying statute will be or has been achieved by other means by the person; and

(2)    when application of a rule would create a substantial hardship    or    would violate principles of fairness.

“Substantial Hardship” means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver.

“Principles of fairness” are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.

IF ALL ELSE FAILS, file suit to compel the issuance of a permit.

If all else fails, then the unjustified refusal to issue a Permit may be reviewed by a court by filing a “Petition for Mandamus.” State ex rel. Lacedonia v. Harvey, 68 So. 2d 817 (Fla. 1953); Am. Jur. Pleading and Practice Forms, Buildings §§ 9, 10. The action is brought against either the individual officer or the municipality.  In a mandamus proceeding, it must appear that the applicant had a right to build in the manner in which the applicant desires and that all valid provisions of law have been complied with by the applicant. Id.  However, if such cannot be shown then equitable estoppel is the exception.


The Building Department may also be estopped from refusing to issue a permit.  The general rule is that the neither a Permit Application nor possessing the Permit itself is a vested right.  Believe it or not, even if the permit was issued, it may be revoked where the zoning law has been amended after the issuance of the permit.  City of Boynton Beach v. Carroll 272 So.2d 171, 173 (Fla. 4th DCA 1973).  However, a vested right may be created in a building permit under the doctrine of equitable estoppel. Hy Kom Development Co. v. Manatee County, 837 F.Supp. 1182, 1187 (M.D.Fla.1993). Equitable estoppel arises where a landowner has in good faith made some substantial change in position in reliance upon the permit. Id.. Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position. Major League Baseball v. Morsani, 790 So.2d 1071, 1076 (Fla.,2001).  Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed, either of property or of contract, or of remedy, as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy. Id.  The doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury. Id.  For instance, a building department may be equitably estopped from denying a permit where extensive financial obligations have been incurred, prior actions of the municipal authorities, or the issuance of other permits such as foundation permits. O. P. Corp. v. Village of North Palm Beach, 278 So. 2d 593 (Fla. 1973); City of North Miami v. State ex rel. Leonard Keller, Inc., 308 So. 2d 558 (Fla. 3rd DCA 1975); City of Naples v. Crans, 292 So. 2d 58 (Fla. 2nd DCA 1974); City of North Miami v. Margulies, 289 So. 2d 424 (Fla. 3rd DCA 1974). 




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[1] The statute does not define “accessory structure” but Section 9.5-4(A-2), Monroe County Code, defines "an accessory use or accessory structure" as: a use or structure that is subordinate to and serves a principal use or structure; is subordinate in area, extent and purpose to the principal use or structure served; contributes to the comfort, convenience or necessity of occupants of the principal use or structure served; and is located on the same lot or lots under the same ownership and in the same land use district as the principal use or structure. See, Melton v. Monroe County  622 So.2d 481, 483 (Fla.App. 3 Dist.,1993)