Cam Fentriss, FRSA LEGISLATIVE COUNSEL
We have a monkey on our back. It’s called open or expired permits. This is a problem that needs a solution. Even if we cannot fix all the ways a permit can remain pending, I am pretty sure we can take a few steps in the right direction.
So, with this article, I will say a few things about open/expired permits, and I will depend on you to correct me if I
say something wrong and to share your thoughts, ideas, and perceptions about this.
First, it is worth noting that this issue comes up from time to time. It usually comes up because a local government gets a new attorney who is shocked at all the open permits and insists that the building department close them all out. That attorney is correct, but it’s usually not nearly as easy or even doable as it sounds.
Last year, legislation was filed that was intended to solve open and expired permits. Rumor has it that the “need” for
legislation stems from changes made by lawyers and others adding a check list item about open permits on a form for
the sale of real property. If so, better research in advance of creating the form (and requesting filing of legislation) would have been good. The legislation went nowhere.
Rumor also has it that the proposed solutions in the legislation were put together by lawyers and building officials.
What could possibly be wrong with letting only those two sets of people come up with all the answers? Just about
everything. Here are some of the things that were wrong with this legislation:
1. It was an attempt to solve the problem by punishing contractors. If punishment is the solution, then it also needs to be available for imposition against building officials and consumers who cause or contribute to the reason for failure to close a permit.
2. It proposed to set up a complicated structure to turn open permits into expired permits and allow for contractors (possibly improperly licensed ones), architects, engineers, and subsequent owners to step into the process in ways that could actually escalate, rather than reduce, liability all the way around.
Do we really need another construction-related law that is as bizarre and difficult to understand as the construction
lien law? No. The goal is not to accommodate the odd whims of anyone looking for business or anyone involved in the
permit process. The goal is to get the open or expired permits concluded!
It seems to me that the first step to solutions is to bring together ALL interested parties. The second step is to ensure
a common understanding of all the problems (not just someone’s urge to define “open permit” and create a trigger for an expired permit, all the while failing to address the gaps that exist because building departments are not comfortable making a decision for anything out of the ordinary and expected course).
The third step should be to spell out and define handling of the easy cases (which requires a mechanism greater and more comprehensive than just slapping a deadline on the length of time associated with an open permit). This can be worded clearly and according to the sequence of events and placed into law so that everyone – contractors, consumers, and building officials – can understand the rules.
After that, we should all explore and discuss the more complicated (or less routine) reasons for open or expired
permits. Some examples:
■ contractor abandons project
■ customer stops project (anger, failure to pay – lots of reasons)
■ building inspector fails to show up for called inspection
■ customer will not allow inspector access to dwelling
■ storm destroys the structure subject to the permit
■ code interpretation dispute between contractor and building department
■ problem/delay obtaining materials specified
Please contact me to add to the list of ways the ability to close a permit is frustrated.
The bottom line is that contractors – more than any other group involved in the permit process – need a solution to this problem because it is likely the contractor carries the majority of the liability for an open permit. Over the years, building officials have proven that, when faced with an order to close out open permits, they will not hesitate to push off ALL responsibility onto contractors and they seem to care very little whether or not a contractor actually can close out a permit (structure gone) or whether or not the building department, rather than the contractor, is responsible for the failure.
This is not to say that contractors have no fault, but it is to say that contractors do not have all the fault but they may
have most of the responsibility, especially with the solutions
contrived by a gang of lawyers and building officials.
Let’s get to work together and fix all or part of this problem. FRM
Anna Cam Fentriss is an attorney licensed in Florida since 1988 representing clients with legislative and state agency
interests. Cam has represented FRSA since 1993, is an Honorary Member of FRSA, recipient of the FRSA President’s Award and the Campanella Award in 2010.
Previous Article
Next Article