Florida Building Code: Violations and Claims

The purpose of the Florida Building Code (“Code”) is to establish minimum requirements to protect the health, safety, and welfare of the public.  Its provisions apply to, among other things, construction, alteration, modification and repairs of buildings and structures.  Therefore, it is no surprise that construction and design defect claims in Florida often involve one party alleging that a contractor, developer, design professional, subcontractor, or even a supplier are liable for violations of the Code.

Florida law allows for a private cause of action for a party’s violation of the Code.  See 553.84 of the Florida Statutes.  Florida law also holds licensees accountable for material violations of the Code, that are not promptly remedied, by imposing fines.  See 553.781 of the Florida Statutes.  Unless the fine is abated, the failure to pay the fine within 30 days will result in a suspension of the licensee’s ability to obtain permits within Florida until the fine is paid.  A “material violation” of the Code is:

A violation that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems.

When dealing with a Code violation in the context of litigation, one must first analyze Section 553.84 and determine whether it applies to the named party, given the work performed. Furthermore, the language of the statute does not impose strict liable for violations, nor does it make every party associated with a construction project liable.  A violation of the Code is evidence of negligence, but does not establish negligence per se.  See Lindsey v. Bill Arflin Bonding Agency Inc.; see also Florida Standard Jury Instruction 401.9.

Section 553.84 provides:

Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation; however, if the person or party obtains the required building permits and any local government or public agency with authority to enforce the Florida Building Code approves the plans, if the construction project passes all required inspections under the code, and if there is no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections, this section does not apply unless the person or party knew or should have known that the violation existed.

In evaluating claims involving Section 553.84, one Florida court has held that a supplier/materialman was not liable for a violation of the Florida Building Code.  See Casa Clara Condominium Association, Inc. v. Charley Toppino & Sons, Inc.   In Casa Clara, a condominium association sued a concrete supplier for defective concrete that caused damages to various buildings and units.  The owners argued that the concrete contained excessive chloride content which caused the reinforcing steel to rust and expand, causing pieces of the structure to crack and concrete to fall off the building.  The concrete supplier moved to dismiss the building code violation and the court agreed.  In so doing, the court reasoned that since there was no allegation that the supplier/materialman performed construction, erection alteration, repair, or alteration of the structure, it was not charged with a duty to comply with the building code.

In addition, one Florida federal court has held that developers of a construction project cannot be liable for building code violations. See Mann v. Island Resorts Development, Inc. In Mann, a condominium owner sued a developer for building code violations associated with the construction of a terrace of a condominium unit.  The developer moved to dismiss the complaint and the court agreed.  In so doing, the court held that the complaint against the developer failed to state a cause of action because the developer did not commit the building code violation, and that Florida law does not impose a duty on the developer to supervise construction.  The court further elaborated that the developer did not have a duty to ensure construction was in compliance with the Code.  According to the holding in Mann, liability under the Code is only imposed on the person or party who committed the violation.

While the Code is critical to ensuring public safety and the integrity of construction projects, it does not apply to all parties associated with a construction project.  In addition, Section 553.84 does not impose strict liability for a violation of the Code.