Did Florida's 2010 permit-extension law apply to building permits issued by cities, not just state permits?

Plain-English summary

The Village of Palmetto Bay's attorney asked Attorney General Bill McCollum whether the 2010 permit-extension law (Chapter 2010-147, amending section 380.06, Florida Statutes) reached building permits issued by the village, or only state-agency permits.

The AG concluded it reached local government building permits too. In 2009, recognizing the depressed real estate market, the Legislature had extended by two years a range of permits expiring between September 1, 2008 and January 1, 2012, including local government development orders and building permits (the office had already said so in AGO 2009-54). The 2010 amendment added another two-year extension on the same window of permits, expressly stating it was "in addition to" the 2009 extension, and required holders to notify the authorizing agency in writing by December 31, 2010. The law listed three specific exclusions (certain Army Corps permits, permits held by those in significant noncompliance, and extensions that would delay compliance with a court order). Because the statute referred to "building permit" without limiting it to state permits, and because listing specific exclusions implies no others, the AG read it to cover locally issued permits.

The attorney also asked how this squared with the Florida Building Code's rule that a permit lapses if work is not started or is abandoned for six months. The AG concluded the section 380.06 extension, being a more specific and later-enacted law, prevails as an exception to the more general Building Code provision.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 380.06 mainly governs developments of regional impact, but the Legislature used it as the vehicle for emergency permit-extension relief during the housing downturn. Section 14, Chapter 2009-96, Laws of Florida, extended permits issued by the Department of Environmental Protection or a water management district, plus local government development orders and building permits, with expiration dates from September 1, 2008 through January 1, 2012, by two years.

Section 46, Chapter 2010-147, Laws of Florida, added a second two-year extension for permits in the same window, stating it was in addition to the 2009 extension and reauthorizing any timely-applied-for 2009 extension. It required written notice to the authorizing agency by December 31, 2010, and excluded only three categories of permit in section 46(4).

The AG applied the canon that when the Legislature enumerates the things a statute operates on, no others may be inferred (Thayer v. State, 335 So. 2d 815 (Fla. 1976)), so only the three listed categories were excluded. On the conflict with the Florida Building Code's six-month lapse provision, the AG relied on the rules that a specific statute controls over a general one (McKendry v. State, 641 So. 2d 45 (Fla. 1994); Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984)) and that the later expression prevails (Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991)).

Citations and references

Statutes and session laws:

• § 380.06, Fla. Stat. (developments of regional impact; permit extension)
• Ch. 2010-147, § 46, Laws of Fla. (2010 two-year extension)
• Ch. 2009-96, § 14, Laws of Fla. (2009 two-year extension)
• Florida Building Code, Ch. 1, § 105.4.1 (six-month permit lapse)

Cases:

• Thayer v. State, 335 So. 2d 815 (Fla. 1976), enumeration canon
• McKendry v. State, 641 So. 2d 45 (Fla. 1994), specific controls over general
• Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984)
• Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), later expression prevails

Prior Attorney General opinion referenced: AGO 2009-54.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/building-permits-effect-of-2010-legislation
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1678

Original opinion text

Ms. Eve A. Boutsis

Village of Palmetto Bay Attorney

18001 Old Cutler Road, Suite 533

Miami, Florida 33157-6416

RE: MUNICIPALITIES – BUILDING PERMITS – application of section 380.06, Fla. Stat., as amended by 2010 legislation to local government building permits. s. 380.06, Fla. Stat.

Dear Ms. Boutsis:

On behalf of the Village of Palmetto Bay, you ask substantially the following question:

Does section 380.06, Florida Statutes, as amended by Chapter 2010-147, Laws of Florida, apply to building permits issued by the village?

In sum:

Section 380.06, Florida Statutes, as amended by Chapter 2010-147, Laws of Florida, applies to building permits issued by a local government with expiration dates between September 1, 2008, and January 1, 2012.

Section 380.06, Florida Statutes, generally addresses developments of regional impact. However, during the 2009 legislative session, in recognition of 2009 real estate market conditions, the Legislature, enacted section 14, Chapter 2009-96, Laws of Florida, amending section 380.06, Florida Statutes, to extend by two years any permit issued by the Department of Environmental Protection or a water management district, as well as development orders or building permits issued by local governments.

This office commented on the requirements of the 2009 act in Attorney General Opinion 2009-54, as they relate to building permits issued by local governments. It was concluded that those seeking to avail themselves of the benefits of the extension of their locally-issued building permits would be required to provide written notification to the local governmental entity which issued the permits by the deadline prescribed in the act, December 31, 2009. The language of the act clearly applied to building permits issued by local governments.[1]

During the 2010 legislative session, section 380.06, Florida Statutes, was again amended to allow the extension of a building permit which has an expiration date from September 1, 2008, through January 1, 2012, for a period of two years after its previously scheduled date of expiration. The legislation specifically recognizes that "[t]his extension is in addition to the 2-year permit extension provided under section 14 of chapter 2009-96, Laws of Florida."[2] The amendment further provides that the holder of a valid permit that is eligible for the two-year extension must notify the authorizing agency in writing by December 31, 2010.[3] Section (4) of the amendment excludes the following from its coverage:

"(a) A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.

(b) A permit or other authorization held by an owner or operator determined to be in significant noncompliance with the conditions of the permit or authorization as established through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or other equivalent action by the authorizing agency.

(c) A permit or other authorization, if granted an extension that would delay or prevent compliance with a court order."

It is a well-established rule of statutory construction that where the Legislature has enumerated things upon which a statute is to operate, no others may be inferred.[4] Thus, it would appear that only those permits enumerated in section 46(4), Chapter 2010-147, Laws of Florida, would be excluded from the provisions of the act.

There is nothing in the language of the 2010 amendment of section 380.06, Florida Statutes, which suggests that locally-issued building permits would be excluded from its coverage. The reference to a "building permit" without limitation as to its origin and the acknowledgement that permits extended under the 2009 legislation could be extended for an additional two years, as well as the Legislature’s reauthorization of "[a]ny 2-year extension authorized and timely applied for pursuant to section 14 of chapter 2009-96, Laws of Florida[,]" would lead to the conclusion that the 2010 legislation applies to building permits issued by local governments. Moreover, nothing in the 2010 amendments would appear to alter the conclusion reached in Attorney General Opinion 2009-54.

You also question the interplay between the provisions of section 380.06, Florida Statutes, and limitations on the time period a building permit remains active contained in the Florida Building Code.[5] As a more specific law enacted at a later date, the provision in section 380.06, Florida Statutes, as amended by Chapter 2010-147, Laws of Florida, would prevail and act as an exception to the more general provisions in the Florida Building Code.[6]

Accordingly, it is my opinion that the 2010 amendment to section 380.06, Florida Statutes, applies to building permits issued by local governments.

Sincerely,

Bill McCollum

Attorney General

BM/tals

[1] Section 14, Ch. 2009-96, Laws of Fla., in pertinent part, states:

"(1) Except as provided in subsection (4), and in recognition of 2009 real estate market conditions, any permit issued by the Department of Environmental Protection or a water management district pursuant to part IV of chapter 373, Florida Statutes, that has an expiration date of September 1, 2008, through January 1, 2012, is extended and renewed for a period of 2 years following its date of expiration. This extension includes any local government-issued development order or building permit. The 2-year extension also applies to build out dates including any build out date extension previously granted under s. 380.06(19)(c), Florida Statutes. This section shall not be construed to prohibit conversion from the construction phase to the operation phase upon completion of construction." (e.s.)

[2] See s. 46(1), Ch. 2010-147, Laws of Fla.

[3] See s. 46(3), Ch. 2010-147, Laws of Fla.

[4] See Thayer v. State, 335 So. 2d 815 (Fla. 1976); Ideal Farms Drainage District v. Certain Lands, 19 So. 2d 234 (Fla. 1944).

[5] Chapter 1‚ s. 105(4)(1), Fla. Building C. (2004 ed. including 2007 amendments), states:

"105.4.1 Permit intent.

A permit issued shall be construed to be a license to proceed with the work and not as authority to violate, cancel, alter or set aside any of the provisions of the technical codes, nor shall issuance of a permit prevent the building official from thereafter requiring a correction of errors in plans, construction or violations of this code. Every permit issued shall become invalid unless the work authorized by such permit is commenced within six months after its issuance, or if the work authorized by such permit is suspended or abandoned for a period of six months after the time the work is commenced."

[6] See McKendry v. State, 641 So. 2d 45 (Fla. 1994) (specific statute covering a particular subject area will control over a statute covering the same and other subjects in more general terms); Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984) (when a special act and a general law conflict, the special act will prevail); Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992) (general rule is that in cases of conflicting statutory provisions, latter expression will prevail over former).