IRVING YELEN ET AL., APPELLANTS,
v.
CITY OF MIRAMAR, FLORIDA, A MUNICIPAL CORPORATION, AND JOHN DEPP AS BUILDING OFFICIAL, APPELLEES

Fla. 4th DCA | 1976-01-09
No. 75-521
Cross, J., Mager, J., Downey, J.
324 So. 2d 643 Florida District Court of Appeal, Fourth District (1976)

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Synopsis

The court affirmed the denial of a mandamus petition seeking a building permit because the municipal ordinance upon which the petitioner relied was never introduced into evidence, making it impossible to determine the legal duty with the requisite certainty.


Holding

A mandamus petition for a building permit cannot be granted when the municipal ordinance establishing the legal duty is not in evidence.


Headnotes

[1] A mandamus petition to compel issuance of a building permit requires that the municipal ordinance establishing the city's legal duty be introduced into evidence so that t…

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Facts & Procedural History

Yelen sought a writ of mandamus to compel the City of Miramar to issue a building permit. The petitioner offered city council minutes into evidence bu…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We are constrained to affirm the final judgment of the trial court denying plaintiff’s second amended petition for writ of mandamus for the reason that the right which the petitioner seeks to have enforced, i. e. to receive a building permit, and the legal duty to be performed by the respondent city, i. e. issuance of such permit, cannot be ascertained to the necessary completeness and certainty required by law without a consideration of the language of the municipal ordinance upon which petitioner relies, which ordinance was never put into evidence. 21 Fla.Jur., Mandamus, § 24, et seq.; Haverty v. State, Fla.App. 1972, 258 So. 2d 18; Town of Medley v. Captan, Fla.App.1966, 191 So. 2d 449. Absent an examination of the ordinance we are unable to discern any error in the trial court’s consideration of the minutes of the appellee city for the purpose of ascertaining the appellee’s intent. Whether these minutes, which were offered into evidence by the appellant, are at variance with or are intended to resolve an ambiguity in the ordinance cannot be determined without a review and examination of such ordinance. Having otherwise found the denial of the writ did not constitute an abuse of discretion, the final judgment is affirmed.

Affirmed.

CROSS, MAGER, and DOWNEY, JJ., concur.


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