By Zach Lombardo, Esq.
Zachary W. Lombardo, Esq.
As part of deciding where to locate your Florida business, it is crucial to confirm that the business is allowed under the zoning code (whether called a zoning code, land use code, land development code, or land development regulations, this article refers to those regulations and codes generally as the “zoning code”) applicable to the location you are considering. If you are locating your business in an existing building in Florida, an additional consideration is to review the prior occupant’s occupancy classification under the applicable building codes.
Occupancy Classifications in Florida
Occupancy classifications are a component of building codes generally and are part of the Florida Building Code. These classifications guide what types of building code regulations and standards apply to any one building. Building code regulations are distinct, different, and separate from a zoning code, which means that even if a use is permitted under the applicable zoning, building code regulations and standards that apply to the building, depending on the occupancy classification under the applicable building codes, may render your business not feasible in the existing building, without alteration.
Understanding the difference is important because the Florida Building Code requires compliance upon change of occupancy classification. The significance of this is that to operate a business that is a permitted use under the zoning rules, a person may be required to obtain a building permit to conform a building to a new occupancy classification. For example, High Hazard classifications may require containment facilities that other Factory or Industrial classifications would not require.
The list of occupancy classifications in the Florida Building Code, 2023 edition, are as follows:
- Assembly (see Section 303): Groups A-1, A-2, A-3, A-4 and A-5.
- Business (see Section 304): Group B.
- Educational (see Section 305): Group E.
- Factory and Industrial (see Section 306): Groups F-1 and F-2.
- High Hazard (see Section 307): Groups H-1, H-2, H-3, H-4 and H-5.
- Institutional (see Section 308): Groups I-1, I-2, I-3 and I-4.
- Mercantile (see Section 309): Group M.
- Residential (see Section 310): Groups R-1, R-2, R-3 and R-4.
- Storage (see Section 311): Groups S-1 and S-2.
- Utility and Miscellaneous (see Section 312): Group U.
Properly permitting a change of occupancy, even when no alterations to a building will be required, still must be done. Collier County, for example, in its Bulletin 25: Change of Occupancy/Use Guidelines (available here: 638265624055070000 (colliercountyfl.gov)), states:
“The State of Florida requires a new Certificate of Occupancy to be issued when an existing building changes its use or occupancy type. All Changes in Occupancy or Use types requires completion of a Building Permit Application and receipt of a Change of Occupancy Permit even if no alterations are being done.” (Emphasis added.)
When locating your business in Florida, be sure to understand zoning laws and building code occupancy classifications, and should you have questions, contact Woodward, Pires & Lombardo, P.A. to guide you through this Florida legal process. Call (239) 649-6555 or contact us online.
Commercial Lease Due Diligence Regarding Occupancy Classifications
To ensure you understand the cost of operating your business at an existing site, or, for certain buildings, whether it is even possible, it is important to understand what due diligence is necessary to verify not just your zoning and land-use restrictions and requirements, but also any approvals for applicable occupancy classification changes that may be required.
If locating your business involves renting space, with a commercial lease, as opposed to purchasing real estate, learning and understanding this information is critical before signing a commercial lease. Much like disclaiming zoning, many commercial leases disclaim any building code issues. Additionally, a change of use permit may require the landlord to apply for the permit, and, if the change of use requires actual changes to the building or property, it is essential to understand what the landlord will allow you to change about the building. Coordinating all of this before signing a lease is an important consideration.
This small amount of due diligence can go a long way in avoiding a scenario where a multi-year lease is signed, and your business simply is not permitted to operate in that particular building.
Another option is to ensure your commercial lease allows you to terminate it without penalty in the event your business is not allowed to operate in the lease space. Depending on the landlord, however, this may not be an option, which is why conducting due diligence is so important.
Contact Us
Should you have any questions about your Florida business, local government law, or commercial leases, please feel free to contact any of the attorneys at Woodward, Pires & Lombardo, P.A. listed below:
Zachary W. Lombardo is a Naples native and an associate attorney at Woodward, Pires & Lombardo, P.A. and a Board Certified Specialist in City, County & Local Government Law by The Florida Bar. His Juris Doctorate is from the Florida State University College of Law. He focuses his land use, zoning, business, contract drafting, and litigation practice in the Southwest Florida community.
Lenore T. Brakefield is a Naples native and partner at Woodward, Pires & Lombardo, P.A. Her Juris Doctorate is from the University of Florida Levin College of Law. Lenore focuses her law practice on civil and commercial litigation and is experienced in construction litigation matters, local government law, code enforcement violations, community association law, real estate law, and transactional matters. Lenore is a Certified Financial Litigator by The American Academy for Certified Financial Litigators.
Anthony P. Pires, Jr. is a partner at Woodward, Pires & Lombardo, P.A. and a Board Certified Specialist in City, County & Local Government Law by The Florida Bar. He represents numerous public and governmental entities, officials, special districts, and private sector clients throughout Collier and Lee Counties in Local Government Law, Land Use and Zoning Law, and Government Relations.
Woodward, Pires & Lombardo, P.A.
Naples Office:
3200 Tamiami Trail N., Suite 200
Naples, Florida 34103
239-649-6555
Marco Island Office:
606 Bald Eagle Drive, Suite 500
Marco Island, Florida 34145
239-394-5161