Akin v. City of Miami

• Decision Date: 28 April 1953
• Parties: AKIN v. CITY OF MIAMI et al.
• Court: Florida Supreme Court

Page 54

65 So.2d 54

37 A.L.R.2d 691

AKIN v. CITY OF MIAMI et al.

Supreme Court of Florida, Special Division A.

April 28, 1953.

Cushman, Gay & Woodard and Lawrence G. Ropes, Jr., Miami, for appellant.

Walton, Hubbard, Schroeder, Lantaff & Atkins, Miami, for appellees.

SEBRING, Justice.

The City of Miami condemned an uncompleted apartment building owned by Florence T. Akin, and thereafter refused to give her a building permit or grant her a reasonable time within which to repair the structure to meet the building requirements of the city. Florence T. Akin thereupon instituted a declaratory judgment suit in the Circuit Court of Dade County seeking a declaration of her rights, an adjudication that the action taken by the city was arbitrary and unlawful, and a money judgment for damages resulting from the unlawful action of the city. At final hearing the trial court granted all relief prayed for except a money judgment, and as to that issue decreed 'That the matter of damages, if any, to the plaintiff owner was not litigated and is not determined in this suit, and this decree is without prejudice to the plaintiff to assert claim or sue for damages against the City for withholding of permit for repairs and construction on said property * * *.'

The city appealed from this decree and the decree was affirmed by this Court without opinion. See City of Miami v. Aiken, Fla., 44 So.2d 816.

After the mandate went down Florence T. Akin instituted the present proceeding to recover damages under authority of section 87.07, Florida Statutes 1951, F.S.A., which provides that 'Further relief based on a declaratory decree, judgment or order may be granted whenever necessary or proper. The application therefor shall be by petition to the circuit court having jurisdiction to grant the relief. If the application be deemed sufficient, the circuit court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory decree, judgment or order, to show cause why further relief should not be granted forthwith.'

In the petition filed by Florence T. Akin, the sole issue involved the claim for money damages which had resulted from the city's refusal to grant the building permit and which had not been adjudicated in the declaratory decree affirmed by this Court.

The City of Miami moved to dismiss the petition on the grounds that the petition showed on its face that the claim was barred by the statute of limitations, and, that inasmuch as the granting or withholding of a building permit by a municipality was the exercise of a purely governmental function, the city could not be held liable in a tort action for damages for the wrongful refusal to issue such a permit.

The trial court granted the motion to dismiss the petition upon the grounds asserted, and this appeal followed.

Both parties to this appeal agree that the exercise of the power by a municipality to grant or refuse a building permit or license is a purely governmental function; and with this we agree. See Clinard v. City of Winston-Salem, 173 N.C. 356, 91 S.E. 1039; James v. City of Toledo, 24 Ohio App. 268, 157 N.E. 309. Section 53.37, McQuillin Mun.Corp., 3d Ed.; 63 C.J.S., Municipal Corporations, § 747; 38 Am.Jur., Mun.Corp., Sec. 605. See also Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049.

While the appellant concedes that the matter of the issuance of a building permit by a municipality is the exercise of a purely governmental function, she contends, nevertheless, that a...